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EXHIBIT 10
CREDIT AGREEMENT
dated as of June 30, 2000
among
ROCK-TENN COMPANY,
THE LENDERS LISTED HEREIN,
and
SUNTRUST BANK,
as Agent,
and
BANK OF AMERICA, N.A.,
as Syndication Agent
and
WACHOVIA BANK, N.A.,
as Documentation Agent
See accompanying notes
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CONTENTS
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ARTICLE 1. DEFINITIONS; CONSTRUCTION............................................................
Section 1.1. Definitions......................................................... 1
Section 1.2. Accounting Terms and Determination.................................. 20
Section 1.3. Other Definitional Terms............................................ 20
Section 1.4. Exhibits and Schedules.............................................. 20
ARTICLE 2. REVOLVING LOANS......................................................................
Section 2.1. Commitment; Use of Proceeds......................................... 21
Section 2.2. Revolving Credit Notes; Repayment of Principal...................... 21
Section 2.3. Reduction of Revolving Credit and Swing Line Commitments; Mandatory
Prepayment.......................................................... 22
Section 2.4. Mandatory Prepayments............................................... 22
Section 2.5. Extension of Commitments............................................ 23
Section 2.6. Pro Rata Payments of Revolving Loans................................ 24
ARTICLE 3. SWING LINE FACILITY..................................................................
Section 3.1. Swing Line Facility; Use of Proceeds................................ 25
Section 3.2. Swing Line Note; Repayment of Principal............................. 26
Section 3.3. Voluntary Reduction of Swing Line Commitment........................ 26
Section 3.4. Mandatory Revolving Loans; Lender Participations.................... 26
ARTICLE 4. GENERAL LOAN TERMS...................................................................
Section 4.1. Funding Notices..................................................... 29
Section 4.2. Disbursement of Funds............................................... 30
Section 4.3. Interest............................................................ 31
Section 4.4. Interest Periods; Maximum Number of Borrowings...................... 33
Section 4.5. Fees................................................................ 34
Section 4.6. Effective Date for Adjustment to Facility Fee Percentage and
Applicable Margin................................................... 34
Section 4.7. Voluntary Prepayments of Borrowings................................. 35
Section 4.8. Manner of Payment, Calculation of Interest, Taxes................... 36
Section 4.9. Interest Rate Not Ascertainable, etc................................ 39
Section 4.10. Illegality.......................................................... 39
Section 4.11. Increased Costs..................................................... 40
Section 4.12. Lending Offices..................................................... 41
Section 4.13. Funding Losses...................................................... 42
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Section 4.14. Assumptions Concerning Funding of Eurodollar Advances............... 42
Section 4.15. Apportionment of Payments........................................... 43
Section 4.16. Sharing of Payments, Etc............................................ 43
Section 4.17. Capital Adequacy.................................................... 43
Section 4.18. Limitation on Certain Payment Obligations........................... 44
ARTICLE 5. CONDITIONS TO BORROWINGS.............................................................
Section 5.1. Conditions Precedent to Initial Loans............................... 45
Section 5.2. Conditions to All Loans............................................. 47
ARTICLE 6. REPRESENTATIONS AND WARRANTIES.......................................................
Section 6.1. Corporate Existence; Compliance with Law............................ 49
Section 6.2. Corporate Power; Authorization...................................... 49
Section 6.3. Enforceable Obligations............................................. 49
Section 6.4. No Legal Bar........................................................ 50
Section 6.5. No Material Litigation.............................................. 50
Section 6.6. Investment Company Act, Etc......................................... 50
Section 6.7. Margin Regulations.................................................. 50
Section 6.8. Compliance With Environmental Laws.................................. 50
Section 6.9. Insurance........................................................... 51
Section 6.10. No Default.......................................................... 52
Section 6.11. No Burdensome Restrictions.......................................... 52
Section 6.12. Taxes............................................................... 52
Section 6.13. Subsidiaries........................................................ 52
Section 6.14. Financial Statements; Fiscal Year and Fiscal Quarters............... 53
Section 6.15. ERISA............................................................... 53
Section 6.16. Patents, Trademarks, Licenses, Etc.................................. 54
Section 6.17. Ownership of Property; Liens........................................ 55
Section 6.18. Indebtedness........................................................ 55
Section 6.19. Financial Condition................................................. 56
Section 6.20. Labor Matters....................................................... 56
Section 6.21. Payment or Dividend Restrictions.................................... 56
Section 6.22. Disclosure.......................................................... 57
ARTICLE 7. AFFIRMATIVE COVENANTS................................................................
Section 7.1. Corporate Existence, Etc............................................ 58
Section 7.2. Compliance with Laws, Etc........................................... 58
Section 7.3. Payment of Taxes and Claims, Etc.................................... 58
Section 7.4. Keeping of Books.................................................... 58
Section 7.5. Visitation, Inspection, Etc......................................... 59
Section 7.6. Insurance; Maintenance of Properties................................ 59
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Section 7.7. Financial Reports; Other Notices.................................... 60
Section 7.8. Notices Under Certain Other Indebtedness............................ 62
Section 7.9. Notice of Litigation................................................ 62
Section 7.10. Subsidiary Guarantees; Pledge Agreement............................. 62
ARTICLE 8. NEGATIVE COVENANTS...................................................................
Section 8.1. Financial Requirements.............................................. 64
Section 8.2. Liens............................................................... 65
Section 8.3. Limitations on Funded Debt of Restricted Subsidiaries............... 66
Section 8.4. Merger and Sale of Assets........................................... 67
Section 8.5. Transactions with Affiliates........................................ 68
Section 8.6. Nature of Business.................................................. 69
Section 8.7. Regulations T, U and X.............................................. 69
Section 8.8. ERISA Compliance.................................................... 69
Section 8.9. Limitations on Subsidiaries which are not Restricted Subsidiaries... 69
Section 8.10 Limitation on Acquisitions; Joint Ventures.......................... 70
Section 8.11 Limitation on Securitization Undertakings of Borrower and
Restricted Subsidiaries............................................. 70
Section 8.12 Restrictive Agreements.............................................. 70
Section 8.13 Restricted Payments................................................. 70
Section 8.14 Adverse Arrangements................................................ 71
ARTICLE 9. EVENTS OF DEFAULT....................................................................
Section 9.1. Payments............................................................ 72
Section 9.2. Covenants Without Notice............................................ 72
Section 9.3. Other Covenants..................................................... 72
Section 9.4. Representations..................................................... 72
Section 9.5. Non-Payments of Other Indebtedness.................................. 72
Section 9.6. Defaults Under Other Agreements..................................... 73
Section 9.7. Bankruptcy.......................................................... 73
Section 9.8. ERISA............................................................... 74
Section 9.9. Money Judgment...................................................... 74
Section 9.10. Default Under Other Credit Documents................................ 74
Section 9.11 Change in Control................................................... 75
Section 9.12 Securitization Events............................................... 75
Section 9.13 Governmental Licenses; Permits...................................... 75
ARTICLE 10. THE AGENT...........................................................................
Section 10.1. Appointment of Agent................................................ 76
Section 10.2. Authorization of Agent with Respect to the Security Documents....... 76
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Section 10.3. Nature of Duties of Agent........................................... 76
Section 10.4. Lack of Reliance on the Agent....................................... 77
Section 10.5. Certain Rights of the Agent......................................... 77
Section 10.6. Reliance by Agent................................................... 77
Section 10.7. Indemnification of Agent............................................ 78
Section 10.8. The Agent in its Individual Capacity................................ 78
Section 10.9. Holders of Notes.................................................... 79
Section 10.10. Successor Agent..................................................... 79
Section 10.11. No Duties Imposed Upon Syndication Agent or Documentation Agent..... 79
Section 10.12 Notices To be Delivered by Agent................................... 80
ARTICLE 11. MISCELLANEOUS.......................................................................
Section 11.1. Notices............................................................. 81
Section 11.2. Amendments, Etc..................................................... 81
Section 11.3. No Waiver; Remedies Cumulative...................................... 82
Section 11.4. Payment of Expenses; Indemnification, Etc........................... 82
Section 11.5. Right of Setoff..................................................... 84
Section 11.6. Benefit of Agreement; Assignments and Participations................ 84
Section 11.7. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial..... 87
Section 11.8. Independent Nature of Lenders' Rights............................... 87
Section 11.9. Counterparts........................................................ 87
Section 11.10. Effectiveness; Survival............................................. 88
Section 11.11. Severability........................................................ 88
Section 11.12. Independence of Covenants........................................... 88
Section 11.13. Change in Accounting Principles, Fiscal Year or Tax Laws............ 88
Section 11.14. Headings Descriptive; Entire Agreement.............................. 89
Section 11.15. Disclosure of Confidential Information.............................. 89
Section 11.16. Interest............................................................ 90
Section 11.17 Limitation on Damages............................................... 91
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SCHEDULES
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Schedule 1.01(a). Applicable Margin and Facility Fee
Schedule 1.01(b). Restricted Subsidiaries
Schedule 6.1. Organization and Ownership of Subsidiaries
Schedule 6.5. Certain Pending and Threatened Litigation
Schedule 6.8(a). Environmental Compliance
Schedule 6.8(b). Environmental Notices
Schedule 6.8(c). Environmental Permits
Schedule 6.11. Burdensome Restrictions
Schedule 6.13. Subsidiaries
Schedule 6.15 ERISA Matters
Schedule 6.16. Patent, Trademark, License, and Other Intellectual Property
Matters
Schedule 6.17. Ownership of Properties
Schedule 6.18. Indebtedness; Liens
Schedule 6.20. Labor Matters
Schedule 6.21. Dividend Restrictions
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EXHIBITS
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Exhibit A Form of Revolving Credit Note
Exhibit B Form of Swing Line Note
Exhibit C Form of Compliance Certificate
Exhibit D Form of Notice of Revolving Borrowing
Exhibit E Form of Notice of Swing Line Borrowing
Exhibit F Form of Notice of Conversion/Continuation
Exhibit G Closing Certificate
Exhibit H-1 Form of Opinion of Corporate Counsel
Exhibit H-2 Form of Opinion of King & Spalding
Exhibit I Form of Assignment and Acceptance Agreement
Exhibit J Form of Contribution Agreement
Exhibit K Form of Subsidiary Guarantee
Exhibit L Form of Joinder Agreement
Exhibit M Form of Stock Pledge Agreement
Exhibit N Form of Termination Letter
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT made and entered into as of June 30, 2000, by and among
ROCK-TENN COMPANY, a Georgia corporation (the "Borrower"), SUNTRUST BANK, a
banking corporation organized under the laws of the State of Georgia
("SunTrust"), the other banks and financial institutions listed on the signature
pages hereof, and any assignees of SunTrust or such other banks and lending
institutions which become "Lenders" as provided herein (SunTrust, and such other
banks, lending institutions, and assignees referred to collectively herein as
the "Lenders"), SUNTRUST BANK, in its capacity as administrative agent for the
Lenders (together with any successor agent for such Lenders as may be appointed
from time to time pursuant to Article 10. hereof, the "Agent"), BANK OF AMERICA,
N.A., as Syndication Agent (the "Syndication Agent") and WACHOVIA BANK, N.A., as
Documentation Agent (the "Documentation Agent");
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make a revolving credit
facility and swing line facility available to the Borrower in an amount not to
exceed $450,000,000 in the aggregate at any one time outstanding, the proceeds
of which are to be used for the repayment of certain existing indebtedness of
Borrower, for financing of acquisitions, for share repurchases, for working
capital and for other general corporate purposes;
WHEREAS, the Lenders have agreed to make such a credit facility available to the
Borrower on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
contained, Borrower, the Lenders and the Agent agree, upon the terms and subject
to the conditions set forth herein as follows:
ARTICLE 1. DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS.
In addition to the other terms defined herein, the following terms used herein
shall have the meanings herein specified (to be equally applicable to both the
singular and plural forms of the terms defined):
"Acquisition" shall mean any acquisition, whether by stock purchase, asset
purchase, merger, consolidation or otherwise of a Person or a business line of a
Person.
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period for a
Eurodollar Advance, the rate obtained by dividing (A) LIBOR for such Interest
Period by (B) a percentage equal to 1 minus the then stated maximum rate (stated
as a decimal) of all reserves requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves) applicable to any
member bank of the Federal Reserve System in respect of Eurocurrency liabilities
as defined in Regulation D (or against any successor category of liabilities as
defined in Regulation D).
"Advance" shall mean any principal amount advanced and remaining outstanding at
any time as (i) Revolving Loans, which Advances shall be made or outstanding as
Base Rate Advances or Eurodollar Advances, as the case may be, or (ii) Swing
Line Loans, which Advances shall be made or outstanding as Base Rate Advances or
Offered Rate Advances, as the case may be.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by, or under common control with, such Person, whether
through the ownership of voting securities, by contract or otherwise, excluding
the Borrower and its Restricted Subsidiaries. For purposes of this definition,
"control" (including with correlative meanings, the terms "controlling",
"controlled by", and "under common control with") as applied to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of that Person.
"Agent" shall mean SunTrust Bank, a Georgia banking corporation, and any
successor administrative agent appointed pursuant to Section 10.10. hereof.
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"Agreement" shall mean this Credit Agreement, as hereafter amended, restated,
supplemented or otherwise modified from time to time in accordance with the
terms hereof.
"Applicable Commitment Percentage" shall mean, with respect to any Lender at any
time, a percentage, the numerator of which shall be the sum of such Lender's
Revolving Credit Commitment and the denominator of which shall be the sum of all
Lenders' Revolving Credit Commitments; or if the Revolving Credit Commitments
have been terminated or expired or if the Loans have been declared to be due and
payable, a percentage, the numerator of which shall be such Lender's Revolving
Credit Exposure and the denominator of which shall be the aggregate Revolving
Credit Exposure of all Lenders.
"Applicable Margin" shall mean with respect to all Revolving Loans outstanding
on any date, a percentage per annum determined by reference to the applicable
ratio of Total Funded Debt to EBITDA as calculated as of the end of the
immediately preceding fiscal quarter determined by reference to the table set
forth on Schedule 1.01(a) attached hereto. Notwithstanding the foregoing, the
initial Applicable Margin shall be determined as set forth in Section 4.6
hereof. Any changes to the Applicable Margin will be effective as of the date
specified in Section 4.6.
"Assignment and Acceptance" shall mean an assignment and acceptance entered into
by a Lender and another bank or financial institution in accordance with the
terms of this Agreement and substantially in the form of Exhibit I.
"Bankruptcy Code" shall mean the Bankruptcy Code of 1978, as amended and in
effect from time to time (11 U.S.C. ss.101 et seq.) and any successor statute.
"Base Rate Advance" shall mean an Advance made or outstanding as a Swing Line
Loan or Revolving Loan, bearing interest based on the Base Rate.
"Base Rate" shall mean (with any change in the Base Rate to be effective as of
the date of change of either of the following rates) the higher of (i) the rate
which the Agent publicly announces from time to time as its prime lending rate,
as in effect from time to time, and (ii) the Federal Funds Rate, as in effect
from time to time, plus one-half of one percent (0.50%) per annum. The Agent's
prime lending rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to customers; the Agent may make commercial
loans or other loans at rates of interest at, above or below the Agent's prime
lending rate.
"Borrower" shall mean Rock-Tenn Company, a Georgia corporation, its successors
and permitted assigns.
"Borrowing" shall mean the incurrence by Borrower under any Facility of Advances
of one Type concurrently having the same Interest Period or the continuation or
conversion of an existing Borrowing or Borrowings in whole or in part.
"Business Day" shall mean any day excluding Saturday, Sunday and any other day
on which banks are required or authorized to close in Atlanta, Georgia and, if
the applicable Business Day relates to Eurodollar Advances, excluding any day on
which trading is not carried on by and between banks in deposits of the
applicable currency in the applicable interbank Eurocurrency market.
"Capital Assets" shall mean, collectively, for any Person, all fixed assets,
whether tangible or intangible determined in accordance with GAAP.
"Capital Lease Obligation" shall mean, with respect to any Capital Lease, the
amount of the rental and other obligations of the lessee thereunder which would,
in accordance with GAAP, appear on a balance sheet of such lessee in respect of
such Capital Lease.
"Capital Lease" shall mean, as applied to any Person, any lease of any property
(whether real, personal or mixed) by such Person as lessee which would, in
accordance with GAAP, be required to be classified and accounted for as a
capital lease on a balance sheet of such Person, other than, in the case of a
Consolidated Company, any such lease under which another Consolidated Company is
the lessor.
"Change in Control" shall mean, as applied to the Borrower, that, during any
period of twelve (12) consecutive calendar months (i) more than fifty percent
(50%) of the members of the Board of Directors of the Borrower who were members
on the first day of such period shall have resigned or been removed or replaced,
other than as a result of death, disability, or change in personal
circumstances, or (ii) any Person or "Group" (as defined in Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended, but excluding (A) any employee
benefit or stock ownership plans of the Borrower, and (B) members of the Board
of Directors and executive officers of the Borrower as of the date of this
Agreement, members of the
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immediate families of such members and executive officers, and family trusts and
partnerships established by or for the benefit of any of the foregoing
individuals) shall have acquired more than fifty percent (50%) of the combined
voting power of all classes of common stock of the Borrower, except that the
Borrower's purchase of its common stock outstanding on the date hereof which
results in one or more of the Borrower's shareholders of record as of the date
of this Agreement controlling more than fifty percent (50%) of the combined
voting power of all classes of the common stock of the Borrower shall not
constitute an acquisition hereunder.
"Closing Date" shall mean June 30, 2000 or such later date on which the initial
Loans are made and the conditions set forth in Section 5.1. and 5.2. are
satisfied or waived.
"Commitment" shall mean, for any Lender at any time, its Revolving Credit
Commitment, or in the case of the Swing Line Lender, the Swing Line Commitment,
as the context may indicate.
"Consolidated Companies" shall mean, collectively, Borrower, all of its
Restricted Subsidiaries, and to the extent required to be consolidated under
GAAP, any Permitted Joint Venture.
"Consolidated Funded Debt" shall mean the Funded Debt of the Consolidated
Companies on a consolidated basis.
"Consolidated Net Income" shall mean the net income of the Borrower on a
consolidated basis as defined according to GAAP minus (to the extent included in
net income) the sum of (i) any net loss or net income of any Unrestricted
Subsidiary that is not a Consolidated Company, (ii) the net income or loss of
any Consolidated Company for any period prior to the date it became a
Consolidated Company as a result of any Permitted Acquisition, (iii) the gain or
loss (net of any tax effect) resulting from the sale of any Capital Assets by
the Consolidated Companies other than in the ordinary course of business of the
Consolidated Companies, and (iv) other extraordinary items, as defined by GAAP,
of the Consolidated Companies.
"Consolidated Net Loss" shall mean the net losses of the Borrower on a
consolidated basis as defined according to GAAP minus (to the extent included in
net income) the sum of (i) any net loss or net income of any Unrestricted
Subsidiary that is not a Consolidated Company, (ii) the net income or loss of
any Consolidated Company for any period prior to the date it became a
Consolidated Company as a result of any Permitted Acquisition, (iii) the gain or
loss (net of any tax effect) resulting from the sale of any Capital Assets by
the Consolidated Companies other than in the ordinary course of business of the
Consolidated Companies, and (iv) other extraordinary items, as defined by GAAP,
of the Consolidated Companies.
"Consolidated Net Worth" shall mean the stockholders' equity of the Consolidated
Companies minus Restricted Investments but only to the extent the Restricted
Investments exceed in the aggregate ten percent (10%) of stockholders' equity.
For purposes of this definition, stockholders' equity shall be determined on a
consolidated basis in accordance with GAAP, as applied on a consistent basis by
the Borrower in the calculation of such amounts in the Borrower's most recent
Financial Reports.
"Contractual Obligation" of any Person shall mean any provision of any security
issued by such Person or of any agreement, instrument or undertaking under which
such Person is obligated or by which it or any of the property owned by it is
bound.
"Contribution Agreement" shall mean a Contribution Agreement substantially in
the form of Exhibit "J" executed and delivered by one or more Subsidiary
Guarantors in favor of the Agent, for the ratable benefit of the Lenders,
together with all amendments and supplements thereto in accordance with the
terms hereof.
"Credit Documents" shall mean, collectively, this Agreement, the Notes, the Fee
Letter, the Pledge Agreements, the Joinder Agreements, the Subsidiary
Guarantees, the Contribution Agreement, the Security Documents and all other
instruments, documents, certificates, agreements and writings executed in
connection herewith.
"Debt Issuance" means the incurrence by the Borrower or any Restricted
Subsidiary of at least $50,000,000 of any Indebtedness for Borrowed Money (other
than the type described in clause (b)(iii) of such definition) in any one
transaction or series of related transactions.
"Default" shall mean any event or condition the occurrence of which constitutes
or would, with the lapse of time or the giving of notice, or both, constitute an
Event of Default.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean lawful money of the
United States of America.
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"EBITDA" shall mean for any fiscal period, Consolidated Net Income (or
Consolidated Net Loss, as the case may be) for such period plus (a) the
aggregate amount deducted in determining such Consolidated Net Income (Loss) in
respect of (i) Interest Expense, (ii) Income Taxes of the Consolidated Companies
determined in accordance with GAAP, (iii) depreciation and amortization expense
of the Consolidated Companies determined in accordance with GAAP, in each case
for the applicable fiscal period, (iv) the amount of any non-cash charges
relating to plant shut-downs and asset impairment charges actually taken by the
Borrower for the quarter ending March 31, 2000, (v) any non-cash charges
actually taken by the Consolidated Companies after March 31, 2000 which are
associated with the accelerated write-off of any tangible or intangible assets
related to the acquisition of Waldorf Corporation provided such amounts do not
exceed $100,000,000 in the aggregate through the Maturity Date, (vi) any
non-cash charges actually taken which are associated with the accelerated
write-off of any tangible or intangible assets provided such amounts do not
exceed $50,000,000 in the aggregate through the Maturity Date in each case for
the Consolidated Companies determined on a consolidated basis in accordance with
GAAP, (b) actual rental expense associated with any Synthetic Lease and (c) cash
distributions of earnings of Unrestricted Subsidiaries made to a Consolidated
Company to the extent previously excluded in the determination of Consolidated
Net Income or Consolidated Net Loss by virtue of clause (i) of the respective
definitions thereof.
"EBITR" shall mean for any fiscal period, Consolidated Net Income (or
Consolidated Net Loss, as the case may be) for such period plus (a) the
aggregate amount deducted in determining such Consolidated Net Income (Loss) in
respect of (i) Interest Expense, (ii) Income Taxes of the Consolidated Companies
determined in accordance with GAAP, (iii) 100% of lease expense (including any
rental expense under any Synthetic Lease but excluding expenses incurred in
respect of Capital Leases) of the Consolidated Companies determined in
accordance with GAAP, in each case for the applicable fiscal period, (iv) any
non-cash charges relating to plant shut-downs and asset impairment charges
actually taken by the Consolidated Companies for the quarter ending March 31,
2000, (v) any non-cash charges actually taken by the Consolidated Companies
after March 31, 2000 which are associated with the accelerated write-off of any
tangible or intangible assets related to the acquisition of Waldorf Corporation
provided such amounts do not exceed $100,000,000 in the aggregate through the
Maturity Date and (vi) any non-cash charges actually taken which are associated
with the accelerated write-off of any tangible or intangible assets provided
such amounts do not exceed $50,000,000 in the aggregate through the Maturity
Date in each case for the Consolidated Companies determined on a consolidated
basis in accordance with GAAP and (b) cash distributions of earnings of
Unrestricted Subsidiaries made to a Consolidated Company to the extent
previously excluded in the determination of Consolidated Net Income or
Consolidated Net Loss by virtue of clause (i) of the respective definitions
thereof.
"Environmental Laws" shall mean all federal, state, local and foreign statutes
and codes or regulations, rules or ordinances issued, promulgated, or approved
thereunder, now or hereafter in effect (including, without limitation, those
with respect to asbestos or asbestos containing material or exposure to asbestos
or asbestos containing material), relating to pollution or protection of the
environment and relating to public health and safety, relating to (i) emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or industrial toxic or hazardous constituents, substances or wastes,
including without limitation, any Hazardous Substance, petroleum including crude
oil or any fraction thereof, any petroleum product or other waste, chemicals or
substances regulated by any Environmental Law into the environment (including,
without limitation, ambient air, surface water, ground water, land surface or
subsurface strata), or (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of any Hazardous
Substance, petroleum including crude oil or any fraction thereof, any petroleum
product or other waste, chemicals or substances regulated by any Environmental
Law, and (iii) underground storage tanks and related piping, and emissions,
discharges and releases or threatened releases therefrom. Such Environmental
Laws to include, without limitation (i) the Clean Air Act (42 U.S.C. ss. 7401 et
seq.), (ii) the Clean Water Act (33 U.S.C. ss. 1251 et seq.), (iii) the Resource
Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), (iv) the Toxic
Substances Control Act (15 U.S.C. ss. 2601 et seq.), (v) the Comprehensive
Environmental Response Compensation and Liability Act,
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as amended by the Superfund Amendments and Reauthorization Act (42 U.S.C. ss.
9601 et seq.), and (vi) all applicable national and local laws or regulations
with respect to environmental control.
"Equity Offering" means an underwritten public offering of any capital stock of
the Borrower, or any debt security convertible into or exchangeable for capital
stock of the Borrower (whether conditionally or unconditionally convertible or
exchangeable or convertible currently or in the future), or any debt security
issued with a warrant or other instrument conferring upon its owner the right to
purchase capital stock of the Borrower, in each case pursuant to an effective
registration statement filed with the Securities and Exchange Commission in
accordance with the Securities Act of 1933, as amended. In no event shall an
Equity Offering include any issuances of stock and stock options to employees
and directors of the Borrower or its Subsidiaries.
"ERISA Affiliate" shall mean, with respect to any Person, each trade or business
(whether or not incorporated) which is a member of a group of which that Person
is a member and which is under common control within the meaning of the
regulations promulgated under Section 414 of the Tax Code.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended and in effect from time to time.
"Eurodollar Advance" shall mean an Advance made or outstanding as a Revolving
Loan, bearing interest based on the Adjusted LIBO Rate.
"Event of Default" shall have the meaning provided in Article 9.
"Executive Officer" shall mean with respect to any Person, the Chief Executive
Officer, President, Vice Presidents (if elected by the Board of Directors of
such Person), Chief Financial Officer, Treasurer, Secretary and any Person
holding comparable offices or duties (if elected by the Board of Directors of
such Person).
"Facility Fee" shall have the meaning ascribed to it in Section 4.5.(a).
"Facility" or "Facilities" shall mean the Revolving Credit Commitments or the
Swing Line Facility, as the context may indicate.
"Facility Fee Percentage" shall mean, with respect to the Facility Fee, as of
any date, the percentage per annum determined by reference to the applicable
ratio of Total Funded Debt to EBITDA as calculated as of the end of the
immediately preceding fiscal quarter determined by reference to the table set
forth on Schedule 1.01(a) attached hereto. Notwithstanding the foregoing, the
initial Facility Fee Percentage shall be determined as set forth in Section 4.6
hereof. Any changes to the Facility Fee Percentage will be effective as of the
date specified in Section 4.6.
"Federal Funds Rate" shall mean for any day, the rate per annum (rounded
upwards, if necessary, to the next 1/100th of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with member banks of the
Federal Reserve System arranged by Federal funds brokers, as published by the
Federal Reserve Bank of New York on the next succeeding Business Day or if such
rate is not so published for any Business Day, the Federal Funds Rate for such
day shall be the average rounded upwards, if necessary, to the next 1/100th of
1% of the quotations for such day on such transactions received by the Agent
from three Federal funds brokers of recognized standing selected by the Agent.
"Fee Letter"" means that certain letter agreement dated May 30, 2000 between the
Borrower, the Agent and SunTrust Equitable Securities Corporation relating to
certain fees from time to time payable by the Borrower to the Agent and SunTrust
Equitable Securities Corporation, together with all amendments and supplements
thereto.
"Financial Officer" means with respect to the Borrower, any of the Chief
Financial Officer, Vice President of Finance, and Treasurer.
"Financial Report" means at a specified date, the most recent financial
statements required to be delivered pursuant to Section 7.7. of this Agreement.
"Fixed Charges" shall mean the sum of (i) Interest Expense of the Consolidated
Companies and (ii) 100% of lease expense of the Consolidated Companies
(including any rental expense under any Synthetic Lease but excluding expenses
incurred in respect of Capital Leases) determined in accordance with GAAP.
"Funded Debt" shall mean, with respect to any Person, without duplication and
excluding in the case of the Consolidated Companies intercorporate obligations
solely among the Consolidated Companies, at any
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time, all then currently outstanding Indebtedness of such Person, including, but
not limited to, all obligations under the Credit Documents provided that with
respect to any Funded Debt of any Permitted Joint Venture that is a Consolidated
Company, the Funded Debt of such Permitted Joint Venture shall be limited to the
Ownership Share of such Funded Debt unless such Funded Debt is recourse to the
Borrower or any Restricted Subsidiary in which event the entire amount of such
Funded Debt shall constitute Funded Debt.
"GAAP" shall mean generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Guaranty" shall mean any contractual obligation, contingent or otherwise, of a
Person with respect to any Indebtedness or other obligation or liability of
another Person, including without limitation, any such Indebtedness, obligation
or liability directly or indirectly guaranteed, endorsed, co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including contractual obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or any agreement to provide funds for the payment or discharge thereof
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise), or to maintain solvency, assets, level of income, or other
financial condition, or to make any payment other than for value received. The
amount of any Guaranty shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which guaranty is
made or, if not so stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"Hazardous Substances" shall have the meaning assigned to that term in the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Acts of 1986.
"Income Taxes" shall have the meaning given such term by GAAP.
"Indebtedness" of any Person shall mean, without duplication, such Person's (i)
Indebtedness for Borrowed Money, (ii) obligations representing the deferred
purchase price of property or services (other than accounts payable arising in
the ordinary course of such Person's business), (iii) obligations, whether or
not assumed, secured by liens or payable out of the proceeds or production from
property or assets now or hereafter owned or acquired by such Person, (iv)
Capital Lease Obligations, (v) any Guaranty, letter of credit reimbursement
obligations (without duplication of any of the underlying obligations which
otherwise constitutes Indebtedness), and other contingent obligations in respect
of repayment of other types of Indebtedness, (vi) any off-balance sheet
liability retained by such Person in connection with asset securitization
programs and Synthetic Leases provided that with respect to any Synthetic Lease,
only the principal obligations under such Synthetic Lease for which any
Consolidated Company has recourse liability shall constitute Indebtedness, and
(vii) any obligation under any Interest Rate Contract or foreign exchange
agreement. Notwithstanding the foregoing, Indebtedness shall exclude all
obligations, contingent or otherwise, provided for in Statement of Financial
Accounting Standards No. 133, as in effect from time to time ("FASB 133"), other
than obligations provided for in FASB 133 which relate to clause (vii) of the
definition of Indebtedness.
"Indebtedness for Borrowed Money" shall mean, with respect to any Person and
without duplication:
(a) Indebtedness for money borrowed, including all revolving and term
Indebtedness and all other lines of credit; and
(b) Indebtedness which
(i) is represented by a note payable or drafts accepted,
that represent extensions of credit;
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(ii) constitutes obligations evidenced by bonds,
debentures, notes or similar instruments; or
(iii) constitutes Purchase Money Indebtedness, conditional
sales contracts, title retention debt instruments or
other similar instruments upon which interest charges
are customarily paid or that are issued or assumed as
full or partial payment for property.
"Interest Expense" shall mean interest expense of the Consolidated Companies net
of interest income of the Consolidated Companies determined on a consolidated
basis, according to GAAP.
"Interest Period" shall mean (i) as to any Eurodollar Advances, the interest
period selected by the Borrower pursuant to Section 4.4.(a) hereof, and (ii) as
to any Advances under the Swing Line Facility, the interest period requested by
the Borrower and agreed to by the Swing Line Lender pursuant to Section 3.1.
hereof in conformity with Section 4.4.(b) hereof provided, that, such Advances
under the Swing Line Facility may not have an Interest Period of more than seven
(7) days.
"Interest Rate Contract" shall mean all interest rate swap agreements, interest
rate cap agreements, interest rate collar agreements, interest rate insurance
and other agreements and arrangements designed to provide protection against
fluctuations in interest rates, in each case as the same may be from time to
time amended, restated, renewed, supplemented or otherwise modified in
accordance with their terms.
"Investment Grade Status" shall exist at any time when the rating of the
Borrower's senior non credit-enhanced long-term unsecured debt is at or above
BBB- from Standard & Poor's and at or above Baa3 from Moody's; provided, that if
either Standard & Poor's or Moody's changes its system of classification after
the date of this Agreement, Investment Grade Status shall exist at any time when
the rating of the Borrower's non credit-enhanced senior long-term unsecured debt
is at or above the new rating which most closely corresponds to the
above-specified level under the previous rating system.
"Joinder Agreement" shall mean a Joinder Agreement, substantially in the form of
Exhibit "L" executed and delivered after the Closing Date by one or more
Subsidiary Guarantors in favor of the Agent, for the ratable benefit of the
Lenders, together with all amendments and supplements thereto, in accordance
with the terms hereof.
"Joint Venture" shall mean, with respect to any Person, any corporation or other
entity (including, without limitation, limited liability companies,
partnerships, joint ventures, and associations) regardless of its jurisdiction
of organization or formation, of which some but less than 100% of the total
combined voting power of all classes of Voting Stock or other ownership
interests, at the time as of which any determination is being made, is owned by
such Person, either directly or indirectly through one or more other
Subsidiaries.
"Joint Venture Investment" shall mean the total amount, valued at book value at
the time of contribution, of any paid in capital (including any asset and other
capital contributions but excluding any intangible assets other than patents,
trademarks and copyrights which shall be included) contributed by the Borrower
or any Restricted Subsidiary to any Joint Venture minus any distributions
received by the Borrower or any Restricted Subsidiary from such Joint Venture.
"Lender" or "Lenders" shall mean SunTrust, the other banks and lending
institutions listed on the signature pages hereof, including, without
limitation, the Swing Line Lender, and each assignee thereof, if any, pursuant
to Section 11.6.(c), together with their corporate successors.
"Lending Office" shall mean for each Lender, the office such Lender may
designate in writing from time to time to Borrower and the Agent with respect to
each Type of Loan.
"LIBOR" shall mean, for any Interest Period, with respect to Eurodollar Advances
the offered rate for deposits in U.S. Dollars, for a period comparable to the
Interest Period appearing on the display designated as Page 3750 on the Dow
Jones Markets Service (or such other page on that service or such other service
designated by the British Banker's Association for the display of such
Association's Interest Settlement Rates for Dollar deposits) as of 11:00 a.m.
(London, England time) on the day that is two Business Days prior to the first
day of the Interest Period or if such Page 3750 is unavailable for any reason at
such time, the rate which appears on the Reuters Screen ISDA Page as of such
date and such time; provided, that if the Agent determines that the relevant
foregoing sources are unavailable for the relevant Interest Period,
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<PAGE> 14
LIBOR shall mean the rate of interest determined by the Agent to be the average
(rounded upward, if necessary, to the nearest 1/100th of 1%) of the rates per
annum at which deposits in U.S. Dollars are offered to the Agent two (2)
Business Days preceding the first day of such Interest Period by leading banks
in the London interbank market as of 10:00 a.m. for delivery on the first day of
such Interest Period, for the number of days comprised therein and in an amount
comparable to the amount of the Eurodollar Loan of the Agent.
"Lien" means any security interest, mortgage, pledge, lien, claim, charge,
encumbrance, title retention agreement, lessor's interest under a Capital Lease
or analogous instrument, in, of or on any property.
"Loans" shall mean, collectively, the Revolving Loans and the Swing Line Loans.
"Margin Regulations" shall mean Regulation T, Regulation U and Regulation X of
the Board of Governors of the Federal Reserve System, as the same may be in
effect from time to time.
"Material" (or words derived therefrom) as used in this Agreement, means the
measure of a matter of significance which shall be determined as being more than
an amount equal to the greater of (i) Ten Million Dollars ($10,000,000) or (ii)
ten percent (10%) of the Consolidated Net Worth.
"Materially Adverse Effect" shall mean any Material adverse change in (i) the
business, operations, financial condition or assets of the Borrower and its
Restricted Subsidiaries, taken as a whole, (ii) the ability of Borrower to
perform its obligations under this Agreement, or (iii) the ability of the
Borrower and its Restricted Subsidiaries (taken as a whole) to perform their
respective obligations, if any, under the Credit Documents.
"Maturity Date" shall mean the earlier of (i) June 30, 2005, and (ii) the date
on which all amounts outstanding under this Agreement have been declared or have
automatically become due and payable pursuant to the provisions of Article 9.;
provided, however, that the date listed in subsection (i) above may be extended
as provided in Section 2.5.
"Moody's" shall mean Moody's Investors Services, Inc. and each of its
successors.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3) of
ERISA.
"Net Proceeds" means the aggregate cash proceeds received by the Borrower or any
of its Restricted Subsidiaries in respect of any Equity Offering (including,
without limitation, any cash received upon the sale or other disposition of any
noncash consideration received in any Equity Offering), Debt Issuance or asset
disposition, in each case, net of the direct costs relating to such Equity
Offering, Debt Issuance or asset disposition, as the case may be (including,
without limitation, legal, accounting and investment banking fees, printing,
sales and distribution costs and expenses, and sales commissions), and taxes
paid or payable as a result thereof.
"Notes" shall mean, collectively, the Revolving Credit Notes and the Swing Line
Note.
"Notice of Revolving Borrowing" shall have the meaning provided in Section
4.1.(a)(i).
"Notice of Conversion/Continuation" shall have the meaning provided in Section
4.1.(b).
"Notice of Swing Line Borrowing" shall have the meaning provided in Section
4.1.(a)(ii).
"Obligations" shall mean all amounts owing to the Agent or any Lender pursuant
to the terms of this Agreement or any other Credit Document, including, without
limitation, all Loans (including all principal and interest payments due
thereunder), fees, expenses, indemnification and reimbursement payments,
indebtedness, liabilities, and obligations of the Borrower and its Restricted
Subsidiaries, direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising, together with all renewals,
extensions, modifications or refinancings thereof.
"Offered Rate" shall mean, for any Interest Period, the rate as offered by the
Swing Line Lender and accepted by the Borrower in accordance with Section 3.1
hereof. The Borrower is under no obligation to accept the Offered Rate and the
Swing Line Lender is under no obligation to provide it.
"Offered Rate Advance" shall mean an Advance outstanding as a Swing Line Loan,
bearing interest based on the Offered Rate.
"Ownership Share" means, with respect to any Permitted Joint Venture, the
Borrower's or any Restricted Subsidiary's relative equity ownership (calculated
as a percentage) in such Permitted Joint Venture determined in accordance with
the applicable provisions of the declaration of trust, articles or certificate
of
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<PAGE> 15
incorporation, articles of organization, partnership agreement, joint venture
agreement or other applicable organizational document of such Permitted Joint
Venture.
"Payment Office" shall mean with respect to payments of principal, interest,
fees or other amounts relating to the Revolving Loans, the Swing Line Loans, and
all other Obligations, the office specified as the "Payment Office" for the
Agent and in the case of the Swing Line Loans, the Swing Line Lender, on the
signature page of the Agent and the Swing Line Lender, or such other location as
to which the Agent or the Swing Line Lender shall have given written notice to
the Borrower.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Acquisition" shall mean any Acquisition so long as (i) at the time of
such Acquisition, no Default or Event of Default is in existence, (ii) such
Acquisition has been approved by the board of directors of the Person being
acquired prior to any public announcement thereof, and (iii) the Borrower
supplies to the Agent a certificate demonstrating pro-forma compliance with the
financial covenants in Section 8.1 hereof after giving effect to such
Acquisition.
"Permitted Joint Ventures" shall mean, collectively, (i) the Sonoco Joint
Venture, (ii) the Seven Hills Joint Venture and (iii) other Joint Ventures in
which the Joint Venture Investment does not exceed $75,000,000 in the aggregate
at any time.
"Permitted Securitization Subsidiary" shall mean any Unrestricted Subsidiary of
the Borrower that (i) is directly or indirectly wholly-owned by the Borrower,
(ii) is formed and operated solely for purposes of a Permitted Securitization
Transaction, (iii) is "bankruptcy remote", (iv) has organizational documents
which limit the permitted activities of such Permitted Securitization Subsidiary
to the acquisition of accounts receivable and related rights from the Borrower
or one or more of its Subsidiaries, the securitization of such accounts
receivable and related rights and activities necessary or incidental to the
foregoing and (v) meets Standard & Poor's Rating Group's requirements for
special purpose entities engaged in securitization of assets.
"Permitted Securitization Transaction" shall mean the transfer by Borrower or
one or more of its Subsidiaries of receivables and rights related thereto to one
or more Permitted Securitization Subsidiaries and the related financing of such
receivables and rights related thereto; provided that (i) such transaction is
treated as a "sale" of receivables under Statement of Financial Accounting
Standards No. 125, "Accounting for Transfers and Servicing of Financial Assets
and Extinguishment of Liabilities", (ii) is non-recourse to Borrower and its
Restricted Subsidiaries, except for Standard Securitization Undertakings and
(iii) the aggregate total amount of all receivables at any time subject to all
Permitted Securitization Transactions shall not exceed $150,000,000 in the
aggregate.
"Person" shall mean any individual, partnership, firm, corporation, association,
joint venture, trust, limited liability company, limited liability partnership,
or other entity, or any government or political subdivision or agency,
department or instrumentality thereof.
"Plan" shall mean any "employee benefit plan" (as defined in Section 3(3) of
ERISA), including, but not limited to, any defined benefit pension plan, profit
sharing plan, money purchase pension plan, savings or thrift plan, stock bonus
plan, employee stock ownership plan, Multiemployer Plan, or any plan, fund,
program, arrangement or practice providing for medical (including
post-retirement medical), hospitalization, accident, sickness, disability, or
life insurance benefits.
"Pledge Agreement" shall mean a Pledge Agreement, substantially in the form of
Exhibit "M" executed and delivered by the Borrower or one or more Subsidiaries
in favor of the Agent, for the ratable benefit of the Lenders, in accordance
with Sections 5.1 and 7.10 hereof, together with all amendments and supplements
thereto.
"Prior Agreement" shall mean that certain Credit Agreement dated as of
January 21, 1997, as amended, by and between the Borrower, the Agent and certain
lenders party thereto.
"Purchase Money Indebtedness" shall mean Indebtedness incurred or assumed for
the purpose of financing all or any part of the acquisition cost of any property
(excluding trade payables incurred in the ordinary course of business and any
property acquired pursuant to any Acquisition) and any refinancing thereof, in
each case entered into in compliance with this Agreement.
"Rating Agency" shall mean either Moody's or Standard & Poor's.
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"Regulation D" shall mean Regulation D of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time.
"Required Lenders" shall mean, at any time, Lenders holding at least 51% of the
aggregate outstanding Revolving Credit Exposures at such time or if the Lenders
have no Revolving Credit Exposure outstanding, then Lenders holding at least 51%
of the Revolving Credit Commitments for all Lenders.
"Requirement of Law" for any Person shall mean any law, treaty, rule or
regulation, or determination of an arbitrator or a court or other governmental
authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"Restricted Investment" means all investments (in cash or by delivery of
property) made, directly or indirectly in any Person, whether by acquisition of
shares of capital stock, indebtedness or other obligations or securities or by
loan, advance, guaranty, capital contribution or otherwise (including, without
limitation, the net actual liability of such Person under an Interest Rate
Contract not entered into in respect of outstanding Funded Debt of such Person);
provided, however, that Restricted Investments shall not mean or include: (i)
investments in property to be used or consumed in the ordinary course of
business, (ii) investments by the Borrower or its Restricted Subsidiaries in and
to Restricted Subsidiaries, including any investment in a corporation which,
after giving effect to such investment, will immediately become a Restricted
Subsidiary, (iii) investments in commercial paper or other short-term security
maturing in 270 days or less from the date of issuance, which at the time of
acquisition by the Borrower or its Subsidiary, is accorded the rating of A-2 or
better by Standard & Poor's or P-2 or better by Moody's, (iv) investments in
direct obligations of the United States of America or any agency or
instrumentality of the United States of America, the payment or guarantee of
which constitutes a full faith and credit obligation of the United States of
America, in either case maturing in three years or less from the date of
acquisition thereof, (v) loans or advances in the usual and ordinary course of
business to officers, directors and employees for expenses (including moving
expenses related to a transfer) incidental to carrying on the business of the
Borrower or any Restricted Subsidiary, (vi) receivables arising from the sale of
goods and services in the ordinary course of business of the Borrower and its
Restricted Subsidiaries, (vii) municipal bonds maturing in three (3) years or
less from the date of acquisition thereof and accorded either a long-term or
short-term rating no lower than the highest rating category by Standard & Poor's
or Moody's, (viii) variable rate preferred stock issued by United States or
United Kingdom corporations which are accorded a rating no lower than the third
highest rating category by Standard & Poor's or Moody's, (ix) variable rate
demand obligations, tax-free preferred stock of United States corporations and
other tax exempt investments which mature in three (3) years or less or have
variable rate features and are accorded a rating no lower than the third highest
rating category by Standard & Poor's or Moody's, (x) certificates of deposit of
or drafts accepted by a commercial bank (a) that is organized under the laws of
the United States of America or any state thereof, and (b) whose long-term
unsecured debt obligations (or the long-term debt obligations of the bank
holding company owning all of the capital stock of such bank) shall be rated A2
or better by Moody's or A or better by Standard & Poor's, and (c) that has
capital, surplus and undivided profits aggregating in excess of $100,000,000,
and (xi) investments in Permitted Joint Ventures and in Permitted Securitization
Subsidiaries.
"Restricted Subsidiary" means (i) any Subsidiary of the Borrower identified as
such on Schedule 1.01(b) hereto, and (ii) any Subsidiary of the Borrower created
or acquired after the date of this Agreement other than an Unrestricted
Subsidiary.
"Revolving Credit Commitment" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Swing Line Loans in an aggregate principal amount not exceeding
the amount set forth with respect to such Lender on the signature pages to this
Agreement, or in the case of a Person becoming a Lender after the Closing Date,
the amount of the assigned "Revolving Credit Commitment" as provided in the
Assignment and Acceptance Agreement executed by such Person as an assignee, as
the same may be changed pursuant to the terms hereof, as the same may be
increased or decreased from time to time as a result of any reduction thereof
pursuant to Section 2.3., any assignment thereof pursuant to Section 11.6., or
any amendment thereof pursuant to Section 11.2.
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"Revolving Credit Exposure" shall mean, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
such Lender's Swing Line Exposure.
"Revolving Credit Notes" shall mean, collectively, the promissory notes
evidencing the Revolving Loans in the form attached hereto as Exhibit A, either
as originally executed or as hereafter amended, modified or supplemented in
accordance with the terms hereof.
"Revolving Loans" shall mean, collectively, the revolving loans made to the
Borrower by the Lenders pursuant to Section 2.1.
"Security Documents" shall mean, collectively, each guaranty agreement,
mortgage, deed of trust, security agreement, pledge agreement, or other security
or collateral document, if any, guaranteeing or securing the Obligations, as the
same may be amended, restated, supplemented or otherwise modified from time to
time.
"Seven Hills Joint Venture" shall mean Seven Hills Paperboard, LLC, a Delaware
limited liability company.
"Sonoco Joint Venture" shall mean RTS Packaging, LLC, a Delaware limited
liability company.
"Standard & Poor's" shall mean Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc. and its successors.
"Standard Securitization Undertakings" shall mean (i) any obligations and
undertakings of the Borrower and any Restricted Subsidiary on terms and
conditions consistent with sale treatment of receivables and that result in a
"sale" of receivables under Statement of Financial Accounting Standards No. 125,
"Accounting for Transfers and Servicing of Financial Assets and Extinguishment
of Liabilities", as in effect on the date of such transfer ("FASB 125") and (ii)
any obligations and undertakings of the Borrower not inconsistent with sale
treatment under FASB 125 in connection with the Borrower's servicing of
receivables.
"Subsidiary" shall mean, with respect to any Person, any corporation or other
entity (including, without limitation, limited liability companies,
partnerships, joint ventures, limited liability companies, and associations)
regardless of its jurisdiction of organization or formation, at least a majority
of the total combined voting power of all classes of Voting Stock or other
ownership interests of which shall, at the time as of which any determination is
being made, be owned by such Person, either directly or indirectly through one
or more other Subsidiaries.
"Subsidiary Guarantee" shall mean a Subsidiary Guarantee substantially in the
form of Exhibit "K" executed and delivered by one or more Subsidiary Guarantors
in favor of the Agent, for the ratable benefit of the Lenders, together with all
amendments and supplements thereto.
"Subsidiary Guarantor" shall mean any Subsidiary which will execute a Subsidiary
Guarantee pursuant to Sections 5.1 or 7.10.
"Swing Line Commitment" shall mean, at any time for the Swing Line Lender, an
amount equal to $20,000,000, as the same may be increased or decreased from time
to time as a result of any assignment thereof pursuant to Section 11.6., or any
amendment thereof pursuant to Section 11.2.
"Swing Line Exposure" shall mean, with respect to each Lender, the principal
amount of the Swing Line Loans with respect to which such Lender is legally
obligated either to make a Base Rate Loan or in which such Lender is legally
obligated to purchase a participation in accordance with Section 3.4, which
shall equal such Lender's Applicable Commitment Percentage of all outstanding
Swing Line Loans.
"Swing Line Facility" shall mean, at any time, the Swing Line Commitment, which
amount shall not exceed $20,000,000.
"Swing Line Lender" shall mean SunTrust and any successor or assignee thereof.
"Swing Line Loans" shall mean, collectively, loans made by the Swing Line Lender
to the Borrower pursuant to the Swing Line Facility.
"Swing Line Note" shall mean a promissory note of the Borrower payable to the
order of the Swing Line Lender, in substantially the form of Exhibit "B" hereto,
evidencing the maximum aggregate principal indebtedness of the Borrower to such
Swing Line Lender with respect to the Swing Line Commitment, either as
originally executed or as it may be from time to time supplemented, modified,
amended, renewed or extended in accordance with the terms hereof.
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"Synthetic Lease" means any synthetic lease, tax retention operating lease or
similar off-balance sheet financing product where such transaction is considered
borrowed money indebtedness for tax purposes but is classified as an operating
lease under GAAP.
"Tax Code" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Taxes" shall mean any present or future taxes, levies, imposts, duties, fees,
assessments, deductions, withholdings or other charges of whatever nature,
including without limitation, income, receipts, excise, property, sales,
transfer, license, payroll, withholding, social security and franchise taxes now
or hereafter imposed or levied by the United States, or any state, local or
foreign government or by any department, agency or other political subdivision
or taxing authority thereof or therein and all interest, penalties, additions to
tax and similar liabilities with respect thereto.
"Telerate" shall mean, when used in connection with any designated page and
LIBOR or the Federal Funds Rate, the display page so designated on the Dow Jones
Telerate Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to LIBOR or the Federal Funds
Rate).
"Total Capitalization" shall mean for the Borrower and its Restricted
Subsidiaries on a consolidated basis, the sum of their: (i) Funded Debt and (ii)
Consolidated Net Worth.
"Total Funded Debt" shall mean, without duplication, the sum of: (i)
Consolidated Funded Debt and (ii) Funded Debt of the Permitted Securitization
Subsidiaries.
"Type" of Borrowing shall mean a Borrowing consisting of Base Rate Advances,
Eurodollar Advances, or Offered Rate Advances.
"Unrestricted Subsidiary" shall mean (i) any Permitted Securitization
Subsidiary, (ii) any Permitted Joint Venture and (iii) any Subsidiary which, at
the option of the Borrower, is designated in writing by the Borrower to the
Agent as being an Unrestricted Subsidiary. The Borrower may designate a
Restricted Subsidiary as an Unrestricted Subsidiary at any time so long as (y)
no Default or Event of Default is in existence or would be caused by such
designation and (z) the Borrower supplies to the Agent a certificate
demonstrating pro-forma compliance with the financial covenants in Section 8.1
hereof after giving effect to such designation.
"Voting Stock" shall mean stock of a corporation of a class or classes having
general voting power under ordinary circumstances to elect a majority of the
board of directors, managers or trustees of such corporation (irrespective of
whether or not at the time stock of any other class or classes shall have or
might have voting power by the reason of the happening of any contingency).
SECTION 1.2. ACCOUNTING TERMS AND DETERMINATION.
Unless otherwise defined or specified herein, all accounting terms shall be
construed herein, all accounting determinations hereunder shall be made, all
financial statements required to be delivered hereunder shall be prepared, and
all financial records shall be maintained, in accordance with GAAP. In the event
of a change in GAAP that is applicable to the Borrower and its Subsidiaries,
compliance with the financial covenants contained herein shall continue to be
determined in accordance with GAAP as in effect prior to such change; provided,
however, that the Borrower and the Required Lenders will thereafter negotiate in
good faith to revise such covenants to the extent necessary to conform such
covenants to GAAP as then in effect.
SECTION 1.3. OTHER DEFINITIONAL TERMS.
The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Article, Section,
Schedule, Exhibit and like references are to this Agreement unless otherwise
specified.
SECTION 1.4. EXHIBITS AND SCHEDULES.
All Exhibits and Schedules attached hereto are by reference made a part hereof.
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ARTICLE 2. REVOLVING LOANS
SECTION 2.1. COMMITMENT; USE OF PROCEEDS.
(a) Subject to and upon the terms and conditions herein set forth, each
Lender severally agrees to make to Borrower from time to time on and after the
Closing Date, but prior to the Maturity Date, Revolving Loans; provided that,
immediately after each such Revolving Loan is made, (i) such Lender's Revolving
Credit Exposure does not exceed such Lender's Revolving Credit Commitment and
(ii) the sum of the aggregate Revolving Credit Exposures of all Lenders does not
exceed the Revolving Credit Commitments of all Lenders.
(b) Subject to Section 4.1(b) each Revolving Loan shall, at the option of
Borrower, be made or continued as, or converted into, part of one or more
Borrowings that shall consist entirely of Base Rate Advances or Eurodollar
Advances. The aggregate principal amount of each Borrowing of Revolving Loans
comprised of Eurodollar Advances shall be not less than $5,000,000 or a greater
integral multiple of $1,000,000, and the aggregate principal amount of each
Borrowing of Revolving Loans comprised of Base Rate Advances shall be not less
than $1,000,000 or a greater integral multiple of $100,000.
(c) The proceeds of Revolving Loans shall be used solely for the following
purposes:
(i) Initially, to repay the obligations outstanding pursuant to
the Prior Agreement on the Closing Date; and
(ii) All other amounts shall be used by the Borrower and its
Subsidiaries for Permitted Acquisitions, share repurchases,
capital expenditures and as working capital and for other
general corporate purposes.
SECTION 2.2. REVOLVING CREDIT NOTES; REPAYMENT OF PRINCIPAL.
(a) The Borrower's obligations to pay the principal of, and interest on,
the Revolving Loans to each Lender shall be evidenced by the records of the
Agent and such Lender and by the Revolving Credit Note payable to such Lender
(or the assignor of such Lender) completed in conformity with this Agreement.
(b) All Borrowings outstanding under the Revolving Credit Commitments shall
be due and payable in full on the Maturity Date.
SECTION 2.3. REDUCTION OF REVOLVING CREDIT AND SWING LINE COMMITMENTS;
MANDATORY PREPAYMENT.
(a) Upon at least three (3) Business Days' prior telephonic notice
(promptly confirmed in writing) to the Agent, the Borrower shall have the right,
without premium or penalty, to terminate the Revolving Credit Commitments, in
part or in whole, provided that any partial termination of the Revolving Credit
Commitments pursuant to this Section 2.3. shall be in an amount of at least
$1,000,000 and integral multiples of $1,000,000.
(b) Any reduction of Revolving Credit Commitments pursuant to subsection
(a) of this Section 2.3. shall proportionately, automatically and permanently
reduce the Revolving Credit Commitments of each of the Lenders based upon each
Lender's Applicable Commitment Percentage.
(c) If at any time the aggregate principal amount of outstanding Revolving
Loans and Swing Line Loans exceeds the Revolving Credit Commitments of all
Lenders, the Borrower shall immediately cause an amount equal to such excess to
be applied as follows in the order of priority indicated:
First, to the prepayment of outstanding Swing Line Loans; and
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Second, to the prepayment of outstanding Revolving Loans.
Subject to the foregoing, any such prepayment shall be applied to such
Loans as designated by the Borrower and, in the event the Borrower fails to
designate a Loan, to such Loans with the earliest maturity dates, based upon the
remaining terms of their respective Interest Periods, and with respect to Loans
with the same Interest Period, pro rata to the Lenders extending such Loans.
Any prepayment of Swing Line Loans and Revolving Loans pursuant to this
Section 2.3. shall be made, insofar as is possible, in such a way as to avoid
any funding losses pursuant to Section 4.13.
SECTION 2.4. MANDATORY PREPAYMENTS.
(a) The Borrower shall be required to make mandatory prepayments of Loans
in the following amounts (i) 100% of the Net Proceeds received by the Borrower
and any of its Restricted Subsidiaries from any sale or other disposition by the
Borrower and any of its Restricted Subsidiaries of any assets (other than assets
sales which do not exceed $10,000,000 in the aggregate through the Maturity
Date), including through any Permitted Securitization Transaction; (ii) 100% of
the Net Proceeds received by the Borrower and any of its Restricted Subsidiaries
in respect of any Equity Offering and (iii) 100% of the Net Proceeds received by
the Borrower and any of its Restricted Subsidiaries in respect of any Debt
Issuance. Such mandatory prepayments will be due upon the consummation of such
Equity Offering, Debt Issuance or asset disposition, as the case may be,
provided that so long as no Event of Default is in existence to the extent that
any such prepayment would create funding losses under Section 4.13, the portion
of such payment that would cause such funding losses shall not be due and
payable until the earliest date on which no funding losses would occur as a
result of such payment (without giving effect to any continuation or conversion
of any Loan). There will be no reduction in any of the Commitments as a result
of any Equity Offering, Debt Issuance or asset disposition described above.
(b) Any such prepayment shall be applied to such Loans as designated by the
Borrower and, in the event the Borrower fails to designate a Loan, to such Loans
with the earliest maturity dates, based upon the remaining terms of their
respective Interest Periods, and with respect to Loans with the same Interest
Period, pro rata to the Lenders extending such Loans.
SECTION 2.5. EXTENSION OF COMMITMENTS.
(a) The Borrower may, by written notice to the Agent (which shall promptly
deliver a copy to each of the Lenders), given not more than one-hundred and
twenty (120) days nor less than ninety (90) days prior to the first and second
anniversary of the Closing Date, request that the Lenders extend the then
scheduled Maturity Date (the "Existing Date") for an additional one-year period.
Each Lender shall, by notice to the Borrower and the Agent given within fifteen
(15) Business Days after the Borrower gives such notice, advise the Borrower and
the Agent whether or not such Lender consents to the extension request (and any
Lender which does not respond during such 15-Business-Day period shall be deemed
to have advised the Borrower that it will not agree to such extension).
(b) If (and only if) all of the Lenders shall have agreed in accordance
with the terms hereof to such extension, the Maturity Date shall be extended for
one additional year from the Existing Date.
(c) The effective date of any extension of the Maturity Date shall be the
date on which all of the Lenders have agreed to such extension in accordance
with the terms of Section 2.5(b).
(d) The extension by the Swing Line Lender of its Revolving Credit
Commitment pursuant to this Section 2.5. shall automatically extend the Swing
Line Commitment.
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(e) The Borrower understands that this Section has been included in this
Agreement for the Borrower's convenience in requesting an extension and
acknowledges that none of the Lenders nor the Agent has promised (either
expressly or impliedly), nor has any obligation or commitment whatsoever, to
extend the Maturity Date at any time.
SECTION 2.6 PRO RATA PAYMENTS OF REVOLVING LOANS.
Except as otherwise provided herein, (a) each payment on account of the
principal of and interest on the Revolving Loans and fees (other than the fees
payable under the Fee Letter, which shall be retained by the Agent) described in
this Agreement shall be made to the Agent for the account of the Lenders pro
rata based on their Applicable Commitment Percentage, (b) all payments to be
made by the Borrower for the account of each of the Lenders on account of
principal, interest and fees, shall be made without set-off or counterclaim, and
(c) the Agent will promptly distribute payments received by it to the Lenders.
If a payment is received by the Agent before 12:00 noon (local time for the
Agent) on a Business Day, the Agent shall distribute each Lender's share of the
payment to such Lender before 2:00 p.m. (local time for the Agent) on the same
day; or if a payment is received by the Agent after 12:00 noon (local time for
the Agent) on a Business Day or is received on a day other than a Business Day,
the Agent shall distribute each Lender's share of the payment to such Lender
before 2:00 p.m. (local time for the Agent) on the next Business Day. If, for
any reason, the Agent makes any distribution to any Lender prior to receiving
the corresponding payment from the Borrower, and the Borrower's payment is not
received by the Agent within three Business Days after payment by the Agent to
the Lender, the Lender will, upon written request from the Agent, return the
payment to the Agent with interest at the Federal Funds Rate for the period
commencing on the date the Lender received such payment and ending on, but
excluding, the date of its repayment to the Agent. If the Agent advises any
Lender of any miscalculation of the amount of such Lender's share that has
resulted in an excess payment to such Lender, promptly upon request by the Agent
such Lender shall return the excess amount to the Agent with interest calculated
as set forth above. Similarly, if a Lender advises the Agent of any
miscalculation that has resulted in an insufficient payment to such Lender,
promptly upon written request by such Lender the Agent shall pay the additional
amount to such Lender with interest calculated as set forth above. In the event
the Agent is required to return any amount of principal, interest or fees or
other sums received by the Agent after the Agent has paid over to any Lender its
share of such amount, such Lender shall, promptly upon demand by the Agent,
return to the Agent such share, together with applicable interest on such share.
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ARTICLE 3. SWING LINE FACILITY
SECTION 3.1. SWING LINE FACILITY; USE OF PROCEEDS.
(a) Commitment. Subject to the terms and conditions set forth herein, the
Swing Line Lender agrees to make Swing Line Loans to the Borrower, from time to
time from the Closing Date to the Maturity Date, in an aggregate principal
amount outstanding at any time not to exceed the lesser of (i) the Swing Line
Commitment then in effect and (ii) the difference between the Revolving Credit
Commitments of all Lenders and the aggregate Revolving Credit Exposures of all
Lenders; provided, that the Swing Line Lender shall not be required to make a
Swing Line Loan to refinance an outstanding Swing Line Loan. The Borrower shall
be entitled to borrow, repay and reborrow Swing Line Loans in accordance with
the terms and conditions of this Agreement.
(b) Amount and Terms of Swing Line Loans. Each Swing Line Loan shall, at
the option of Borrower, be made as Base Rate Advances or, to the extent
available, Offered Rate Advances. The aggregate principal amount of each Swing
Line Loan shall be not less than $500,000 or greater integral multiples of
$100,000.
(c) Use of Proceeds. The proceeds of Swing Line Loans shall be used by the
Borrower and its Subsidiaries for Permitted Acquisitions, share repurchases,
capital expenditures and as working capital and for other general corporate
purposes.
(d) Notification of Availability of Offered Rate Advance and Offered Rate.
The Swing Line Lender shall have no obligation to make an Offered Rate Advance.
If the Swing Line Lender elects to make an Offered Rate Advance, it shall notify
the Borrower of the Offered Rate being offered prior to 11:00 a.m. (Atlanta
time) on the Business Day of such requested Advance (such Notice of Swing Line
Borrowing to be given as provided in Section 4.1(a)(ii) hereof). If the Borrower
does not notify the Swing Line Lender of its acceptance of such Offered Rate
Advance prior to 12:00 noon (Atlanta time) on the date of such requested
Advance, the Borrower will be deemed to have rejected the same.
(e) Swing Line Lender. If the existing Swing Line Lender (the "Existing
Swing Line Lender") is unable or unwilling to make Offered Rate Advances to the
Borrower, the Borrower may, upon the satisfaction of the following conditions,
designate a new Swing Line Lender to replace the Existing Swing Line Lender:
(i) the Borrower shall provide written notice to the
Agent and the Lenders, including the Existing Swing Line Lender, of its
intention to proceed under this paragraph (e), which notice shall include (i)
the identity of the lending institution selected by the Borrower to be the new
Swing Line Lender (the "New Swing Line Lender") and (ii) the date upon which the
Borrower intends to effect the replacement of the Existing Swing Line Lender
(the "Swing Line Lender Replacement Date"); and
(ii) the Borrower shall, on or prior to the Swing Line
Lender Replacement Date, repay in full all outstanding Swing Line Loans,
together with all accrued and unpaid interest thereon, and all other amounts
owing to the Existing Swing Line Lender hereunder relating to its Swing Line
Loans. Upon the satisfaction of the foregoing conditions and upon the
consummation of the amendment to this Agreement referred to in the next
sentence, (x) the Swing Line Commitment shall terminate as to the Existing Swing
Line Lender; (y) the Existing Swing Line Lender shall cancel the outstanding
Swing Line Note and return it to the Borrower and (z) the New Swing Line Lender
shall replace and become vested with all the rights, powers, privileges and
duties of the existing Swing Line Lender under this Agreement. Before the new
Swing Line Commitment can become effective, it will be necessary to amend the
provisions of this Agreement relating to the relationship of the Swing Line
Commitment to the Revolving Credit Commitment of the Existing Swing Line Lender.
The Lenders and the Borrower covenant and agree to negotiate such amendment in
good faith.
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SECTION 3.2. SWING LINE NOTE; REPAYMENT OF PRINCIPAL.
(a) The Borrower's obligations to pay the principal of, and interest on,
the Swing Line Loans to the Swing Line Lender shall be evidenced by the records
of the Swing Line Lender and by the Swing Line Note payable to the Swing Line
Lender in the amount of the Swing Line Facility.
(b) All Borrowings outstanding under the Swing Line Note shall be due and
payable in full on the earlier of (i) the expiration of the applicable Interest
Period or (ii) on the Maturity Date.
SECTION 3.3. VOLUNTARY REDUCTION OF SWING LINE COMMITMENT
Upon at least three (3) Business Days' prior telephonic notice (promptly
confirmed in writing) to Swing Line Lender and the Agent, Borrower shall have
the right, without premium or penalty, to terminate the unutilized portion of
the Swing Line Commitment, in part or in whole, provided that any partial
termination pursuant to this Section 3.3. shall be in an amount of at least
$1,000,000 and integral multiples of $100,000.
SECTION 3.4. MANDATORY REVOLVING LOANS; LENDER PARTICIPATIONS.
(a) If (i) any Swing Line Loan matures and remains unpaid; (ii) any Default
or Event of Default occurs or (iii) the Swing Line Lender's total amount of
outstanding Revolving Loans and Swing Line Loans exceed the Swing Line Lender's
Revolving Credit Commitment, then the Swing Line Lender may, on behalf of the
Borrower (which hereby irrevocably authorizes and directs the Swing Line Lender
to act on its behalf), give a Notice of Revolving Borrowing to the Lenders
(including the Swing Line Lender) to make Base Rate Loans in an amount equal to
the unpaid principal amount of any Swing Line Loan. Each Lender will make the
proceeds of its Base Rate Loan included in such Borrowing available to the Agent
for the account of the Swing Line Lender in accordance with Section 4.2, which
will be used solely for the repayment of such Swing Line Loan.
(b) If for any reason a Base Rate Borrowing may not be (as determined in
the sole discretion of the Agent), or is not, made in accordance with the
foregoing provisions, then each Lender (other than the Swing Line Lender) shall
purchase an undivided participating interest in such Swing Line Loan in an
amount equal to its Applicable Commitment Percentage thereof on the date that
such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds,
the amount of its participating interest to the Agent for the account of the
Swing Line Lender. If such Swing Line Loan bears interest at a rate other than
the Base Rate, such Swing Line Loan shall automatically become a Base Rate Loan
on the effective date of any such participation and interest shall become
payable on demand.
(c) Each Lender's obligation to make a Base Rate Loan pursuant to Section
3.4(a) or to purchase the participating interests pursuant to Section 3.4(b)
shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swing Line Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any Lender's Revolving Credit Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or could reasonably
be expected to have a Materially Adverse Effect, (iv) any breach of this
Agreement or any other Credit Document by the Borrower or any Restricted
Subsidiary, the Agent or any Lender or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing; provided,
however, that a Lender shall not have any obligation to make a Base Rate Loan
pursuant to Section 3.4(a) or to purchase the participating interests pursuant
to Section 3.4(b) if prior to the making of such Swing Line Loan, (i) an Event
to Default shall be in existence, (ii) the Borrower shall have delivered written
notice to the Swing Line Lender stating that an Event of Default is in existence
and (iii) such Lender shall have delivered written notice to the Swing Line
Lender indicating that such Lender shall not have any obligation to make a Base
Rate Loan pursuant to Section 3.4(a) or to purchase the participating interests
pursuant to Section 3.4(b) for such Swing Line Loan. If such amount is not in
fact made available to the Swing Line Lender by any Lender in violation of this
Section 3.4(c), the Swing Line Lender shall be entitled to recover such amount
on demand from such Lender, together with accrued interest thereon for each day
from the date of
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demand thereof at the Federal Funds Rate. Until such time as such Lender makes
its required payment, the Swing Line Lender shall be deemed to continue to have
outstanding Swing Line Loans in the amount of the unpaid participation for all
purposes of the Credit Documents. In addition, such Lender shall be deemed to
have assigned any and all payments made of principal and interest on its Loans
and any other amounts due to it hereunder, to the Swing Line Lender to fund the
amount of such Lender's participation interest in such Swing Line Loans that
such Lender failed to fund pursuant to this Section, until such amount has been
purchased in full.
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ARTICLE 4. GENERAL LOAN TERMS
SECTION 4.1. FUNDING NOTICES.
(a) (i) Whenever Borrower desires to make a Borrowing of Revolving
Loans with respect to the Revolving Credit Commitments (other than one resulting
from a conversion or continuation pursuant to Section 4.1.(b)), it shall give
the Agent prior written notice (or telephonic notice promptly confirmed in
writing) of such Borrowing substantially in the form attached as Exhibit "D"
attached hereto (a "Notice of Revolving Borrowing"), such Notice of Revolving
Borrowing to be given at Agent's Payment Office (x) prior to 11:00 A.M. (local
time for the Agent) on the Business Day which is the requested date of such
Borrowing in the case of Base Rate Advances, and (y) prior to 12:00 noon (local
time for the Agent) three Business Days prior to the requested date of such
Borrowing in the case of Eurodollar Advances. Notices received after 12:00 noon
shall be deemed received on the next Business Day. Each Notice of Revolving
Borrowing shall be irrevocable and shall specify the aggregate principal amount
of the Borrowing, the date of Borrowing (which shall be a Business Day), and
whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances
and (in the case of Eurodollar Advances) the Interest Period to be applicable
thereto.
(ii) Whenever Borrower desires to obtain a Swing Line Loan under
the Swing Line Facility, it shall give the Swing Line Lender prior written
notice (or telephonic notice promptly confirmed in writing) of such Swing Line
Loan substantially in the form attached as Exhibit "E" hereto (a "Notice of
Swing Line Borrowing"), (x) prior to 12:00 Noon (local time for the Swing Line
Lender) on the Business Day which is the requested date of such Swing Line Loan
in the case of Base Rate Advances and (y) prior to 10:30 a.m. (local time for
the Swing Line Lender) on the Business Day which is the requested date of such
Swing Line Loan in the case of Offered Rate Advances. Each Notice of Swing Line
Borrowing shall be irrevocable and shall specify: (i) the principal amount of
such Swing Line Loan, (ii) the date of such Swing Line Loan (which shall be a
Business Day) and (iii) the account of the Borrower to which the proceeds of
such Swing Line Loan should be credited. The Agent will promptly advise the
Swing Line Lender of each Notice of Swing Line Borrowing. Each Swing Line Loan
shall accrue interest at the Base Rate or at the Offered Rate as agreed between
the Borrower and the Swing Line Lender and shall have an Interest Period as
agreed between the Borrower and the Swing Line Lender but in any event shall not
have an Interest Period exceeding 7 days.
(b) Whenever Borrower desires to convert all or a portion of an outstanding
Borrowing under the Revolving Credit Commitments consisting of Base Rate
Advances into a Borrowing consisting of Eurodollar Advances, or to continue
outstanding a Borrowing consisting of Eurodollar Advances for a new Interest
Period, it shall give the Agent at least three Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) of each such
Borrowing to be converted into or continued as Eurodollar Advances. Such notice,
to be in substantially the form of Exhibit "F" attached hereto (a "Notice of
Conversion/Continuation"), shall be given prior to 12:00 noon (local time for
the Agent) on the date specified at the Payment Office of the Agent. Each such
Notice of Conversion/Continuation shall be irrevocable and shall specify the
aggregate principal amount of the Advances to be converted or continued, the
date of such conversion or continuation and the Interest Period to be applicable
thereto. If, upon the expiration of any Interest Period in respect of any
Borrowing consisting of Eurodollar Advances, Borrower shall have failed to
deliver the Notice of Conversion/Continuation, Borrower shall be deemed to have
elected to convert or continue such Borrowing to a Borrowing consisting of Base
Rate Advances. So long as any Executive Officer of Borrower has knowledge that
any Default or Event of Default shall have occurred and be continuing, no
Borrowing may be converted into or continued as (upon expiration of the current
Interest Period) Eurodollar Advances unless the Agent and each of the Lenders
shall have otherwise consented in writing. No conversion of any Borrowing of
Eurodollar Advances shall be permitted except on the last day of the Interest
Period in respect thereof.
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(c) Without in any way limiting Borrower's obligation to confirm
in writing any telephonic notice, the Agent and the Swing Line Lender may act
without liability upon the basis of telephonic notice believed by the Agent or
the Swing Line Lender, as the case may be, in good faith to be from Borrower
prior to receipt of written confirmation. In each such case, Borrower hereby
waives the right to dispute the Agent's or the Swing Line Lender's, as the case
may be, record of the terms of such telephonic notice.
(d) The Agent shall promptly give each Lender notice by telephone
(confirmed in writing) or by telecopy or facsimile transmission of the matters
covered by the notices given to the Agent pursuant to this Section 4.1. with
respect to the Revolving Credit Commitments.
SECTION 4.2. DISBURSEMENT OF FUNDS.
(a) No later than 12:00 noon (local time for the Agent) in the case of a
Borrowing consisting of Eurodollar Advances and no later than 2:00 p.m. (local
time for the Agent) in the case of a Borrowing consisting of Base Rate Advances
on the date of each Borrowing pursuant to the Revolving Credit Commitments
(other than one resulting from a conversion or continuation pursuant to Section
4.1.(b)), each Lender will make available its Applicable Commitment Percentage
of the amount of such Borrowing in immediately available funds at the Payment
Office of the Agent. The Agent will make available to Borrower the aggregate of
the amounts (if any) so made available by the Lenders to the Agent in a timely
manner by crediting such amounts to Borrower's demand deposit account maintained
with the Agent or at Borrower's option, by effecting a wire transfer of such
amounts to Borrower's account specified by the Borrower, by the close of
business on such Business Day. In the event that the Lenders do not make such
amounts available to the Agent by the time prescribed above, but such amount is
received later that day, such amount may be credited to Borrower in the manner
described in the preceding sentence on the next Business Day (with interest on
such amount to begin accruing hereunder on such next Business Day).
(b) No later than 2:00 p.m. (local time for the Swing Line Lender) on the
date of each Swing Line Loan, the Swing Line Lender shall make available to
Borrower the requested Swing Line Loan by crediting such amounts to Borrower's
demand deposit account maintained with the Agent or at Borrower's option, by
effecting a wire transfer of such amounts to Borrower's account specified by the
Borrower, by the close of business on such Business Day.
(c) Unless the Agent shall have been notified by any Lender prior to the
date of a Borrowing that such Lender does not intend to make available to the
Agent such Lender's portion of the Borrowing to be made on such date, the Agent
may assume that such Lender has made such amount available to the Agent on such
date and the Agent may make available to Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the Agent by such
Lender on the date of Borrowing, the Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at the
Federal Funds Rate. If such Lender does not pay such corresponding amount
forthwith upon the Agent's demand therefor, the Agent shall promptly notify
Borrower, and Borrower shall immediately pay such corresponding amount to the
Agent together with interest at the rate specified for the Borrowing which
includes such amount paid and any amounts due under Section 4.13. hereof.
Nothing in this subsection shall be deemed to relieve any Lender from its
obligation to fund its Commitments hereunder or to prejudice any rights which
Borrower may have against any Lender as a result of any default by such Lender
hereunder.
(d) All Borrowings under the Revolving Credit Commitments shall be loaned
by the Lenders on the basis of their Applicable Commitment Percentage on the
date of such Borrowing. No Lender shall be responsible for any default by any
other Lender in its obligations hereunder, and each Lender shall be obligated to
make the Loans provided to be made by it hereunder, regardless of the failure of
any other Lender to fund its Commitment hereunder.
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SECTION 4.3. INTEREST.
(a) Borrower agrees to pay interest in respect of all unpaid principal
amounts of the Revolving Loans from the respective dates such principal amounts
were advanced to maturity (whether by acceleration, notice of prepayment or
otherwise) at rates per annum equal to the applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in effect from time to
time; and
(ii) For Eurodollar Advances--The relevant Adjusted LIBO Rate plus
the Applicable Margin.
(b) Borrower agrees to pay interest in respect of all unpaid principal
amounts of the Swing Line Loans made to Borrower from the respective dates such
principal amounts were advanced to maturity (whether by acceleration, notice of
prepayment or otherwise) at rates per annum equal to the applicable rates
indicated below:
(i) For Base Rate Advances--The Base Rate in effect on each day
that the Swing Line Loan is outstanding; and
(iii) For Offered Rate Advances--The relevant Offered Rate.
(c) After the occurrence and during the continuation of an Event of
Default, the Obligations, shall bear interest from the date of such Event of
Default:
(i) in the case of all Loans outstanding as Eurodollar Advances,
at the greater of (A) the rate otherwise applicable for the
then-current Interest Period plus an additional two percent
(2.0%) per annum or (B) the rate in effect for Base Rate
Advances plus an additional two percent (2.0%) per annum; and
(ii) in the case of all other Loans outstanding as Base Rate
Advances or Offered Rate Advances, and all other Obligations
hereunder (other than Loans), at a rate equal to the Base Rate
plus an additional two percent (2.0%) per annum.
All interest due under this clause (c) shall be payable upon demand.
(d) Interest on each Loan shall accrue from and including the date of such
Loan to but excluding the date of any repayment thereof; provided that, if a
Loan is repaid on the same day made, one day's interest shall be paid on such
Loan. Interest on all outstanding Base Rate Advances and Offered Rate Advances
shall be payable quarterly in arrears on the last day of each calendar quarter,
except that the first payment shall be due and payable on September 30, 2000.
Interest on all outstanding Eurodollar Advances shall be payable on the last day
of each Interest Period applicable thereto, and, in the case of Eurodollar
Advances having an Interest Period in excess of three months, on each three
month anniversary of the initial date of such Interest Period. Interest on all
Loans shall be payable on any conversion of any Advances comprising such Loans
into Advances of another Type (other than in connection with the conversion from
a Base Rate Loan), prepayment (on the amount prepaid), at maturity (whether by
acceleration, notice of prepayment or otherwise) and, after maturity, on demand.
(e) The Agent shall promptly notify the Borrower and the other Lenders by
telephone (confirmed in writing) or in writing, upon determining the Adjusted
LIBO Rate for any Interest Period. Any such determination shall, absent manifest
error, be final, conclusive and binding for all purposes.
SECTION 4.4. INTEREST PERIODS; MAXIMUM NUMBER OF BORROWINGS.
(a) In connection with the making or continuation of, or conversion into,
each Borrowing of Eurodollar Advances, Borrower shall select an Interest Period
to be applicable to such Eurodollar Advances, which Interest Period shall be
either a 1, 2, 3 or 6 month period.
(b) In connection with the submission of each request for an Advance under
the Swing Line Facility, the Borrower may select an Interest Period to be
applicable to such Advance not to exceed 7 days.
(c) Notwithstanding paragraphs (a) and (b) of this Section 4.4.:
(i) The initial Interest Period for any Borrowing of Eurodollar
Advances or Offered Rate Advances shall commence on the date
of such Borrowing (including the date of any conversion from a
Borrowing consisting of Base Rate Advances) and each Interest
Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest
Period expires;
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(ii) If any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day, provided that if any
Interest Period in respect of Eurodollar Advances would
otherwise expire on a day that is not a Business Day but is a
day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next
preceding Business Day;
(iii) Any Interest Period in respect of Eurodollar Advances which
begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period shall, subject to part (iv) below, expire on
the last Business Day of such calendar month; and
(iv) No Interest Period with respect to the Loans shall extend
beyond the Maturity Date.
(d) At no time shall the combined number of Borrowings outstanding under
Articles 2. and 3. exceed eight (8); provided that, for the purpose of
determining the number of Borrowings outstanding and the minimum amount for
Borrowings resulting from conversions or continuations, all Swing Line Loans
comprised of Base Rate Advances shall be considered as one Borrowing, all Swing
Line Loans comprised of Offered Rate Advances shall be considered as one
Borrowing, and all Revolving Loans comprised of Base Rate Advances shall be
considered as one Borrowing.
SECTION 4.5. FEES.
(a) Borrower shall pay to the Agent, for the ratable benefit of each Lender
based upon its respective Applicable Commitment Percentage, a facility fee (the
"Facility Fee") for the period commencing on the Closing Date to and including
the Maturity Date, payable quarterly in arrears on the last day of each calendar
quarter, except that the first payment shall be due and payable on September 30,
2000, and on the Maturity Date, equal to the Facility Fee Percentage multiplied
by the average daily amount of the Revolving Credit Commitments, whether or not
utilized.
(b) Borrower shall pay to the Agent and SunTrust Equitable Securities
Corporation the amounts and on the dates agreed to in the Fee Letter.
SECTION 4.6. EFFECTIVE DATE FOR ADJUSTMENT TO FACILITY FEE PERCENTAGE AND
APPLICABLE MARGIN.
The Facility Fee Percentage and Applicable Margin (collectively "Applicable
Percentages") shall be determined and adjusted quarterly on the date that is two
Business Days after the date on which the Borrower provides the officer's
certificate in accordance with the provisions of Section 7.7.(d) (each a
"Calculation Date"); provided, however that (i) the Applicable Percentages from
the Closing Date until the first Calculation Date subsequent to June 30, 2000
shall be at Level V (as set forth in Schedule 1.01(a)) , and, thereafter, such
level shall be determined by the then current ratio of Total Funded Debt to
EBITDA, and (ii) if the Borrower fails to provide the officer's certificate to
the Agent by the date such certificate is required to be delivered under Section
7.7(d), the Applicable Percentages from such date shall be at Level VI until
such time as an appropriate officer's certificate is provided, whereupon the
level shall be determined by the then current ratio of Total Funded Debt to
EBITDA. Except as set forth above, each Applicable Percentage shall be effective
from one Calculation Date until the next Calculation Date.
SECTION 4.7. VOLUNTARY PREPAYMENTS OF BORROWINGS.
(a) Borrower may, at its option, prepay Borrowings of Swing Line Loans at any
time in whole, or from time to time in part, in amounts aggregating $500,000 or
any greater integral multiple of $100,000, by paying the principal amount to be
prepaid together with interest accrued and unpaid thereon to the date of
prepayment. Borrower may, at its option, prepay Borrowings of Revolving Loans
consisting of Base Rate Advances at any time in whole, or from time to time in
part, in amounts aggregating $1,000,000 or
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any greater integral multiple of $100,000, by paying the principal amount to be
prepaid together with interest accrued and unpaid thereon to the date of
prepayment. Borrowings consisting of Eurodollar Advances may be prepaid, at
Borrower's option, in whole, or from time to time in part, in amounts
aggregating $5,000,000 or an integral multiple of $1,000,000 (except that no
partial prepayment may be made if the remaining principal amount outstanding of
such Eurodollar Advance which comprises a Revolving Loan would be less than
$5,000,000), by paying the principal amount to be prepaid, together with
interest accrued and unpaid thereon to the date of prepayment, and all
compensation payments pursuant to Section 4.13. if such prepayment is made on a
date other than the last day of an Interest Period applicable thereto. Each such
optional prepayment shall be applied in accordance with Section 4.7.(c) below.
(b) Borrower shall give written notice (or telephonic notice confirmed in
writing) to the Agent or the Swing Line Lender, as applicable, of any intended
prepayment of the Revolving Loans (i) by 11:00 A.M. (local time for the Agent)
on the Business Day of any prepayment of Base Rate Advances or Offered Rate
Advances and (ii) not less than three Business Days prior to any prepayment of
Eurodollar Advances. Such notice, once given, shall be irrevocable. Upon receipt
of such notice of prepayment pursuant to the first sentence of this paragraph
(b) with respect to any prepayment of Revolving Loans, the Agent shall promptly
(and in any event by the same time on the next succeeding Business Day as such
notice is received) notify each Lender of the contents of such notice and of
such Lender's Applicable Commitment Percentage of each Revolving Loan subject to
such prepayment.
(c) Borrower, when providing notice of prepayment pursuant to Section
4.7.(b), may designate the Types of Advances and the specific Borrowing or
Borrowings which are to be prepaid, provided that (i) if any prepayment of
Eurodollar Advances made pursuant to a single Borrowing of the Revolving Loans
shall reduce the outstanding Advances made pursuant to such Borrowing to an
amount less than $5,000,000, such Borrowing shall immediately be converted into
Base Rate Advances; and (ii) each prepayment made pursuant to a single Borrowing
shall be applied pro rata among the Loans comprising such Borrowing. All
voluntary prepayments shall be applied to the payment of interest then due and
owing before application to principal.
SECTION 4.8. MANNER OF PAYMENT, CALCULATION OF INTEREST, TAXES
(a) (i) Except as otherwise specifically provided herein, all payments under
this Agreement and the other Credit Documents, other than the payments specified
in clause (ii) below, shall be made without defense, set-off or counterclaim to
the Agent not later than 12:00 noon (local time for the Agent) on the date when
due and shall be made in Dollars in immediately available funds at the Agent's
Payment Office.
(ii) All payments under this Agreement with respect to the Swing
Line Loans, including the Swing Line Facility Fee, shall be made without
defense, set-off or counterclaim to the Swing Line Lender not later than 12:00
noon (local time for the Swing Line Lender) on the date when due and shall be
made in Dollars in immediately available funds at the Swing Line Lender's
Payment Office.
(b) (i) All such payments shall be made free and clear of and without deduction
or withholding for any Taxes in respect of this Agreement, the Notes or other
Credit Documents, (but excluding, except as provided in paragraph (iii) hereof,
in the case of each Lender, taxes imposed on or measured by its net income, and
franchise taxes and branch profit taxes imposed on it (A) by the jurisdiction
under the laws of which such Lender is organized or any political subdivision
thereof and, in the case of each Lender, taxes imposed on or measured by its net
income, and franchise taxes and branch profit taxes imposed on it, by the
jurisdiction of such Lender's appropriate Lending Office or any political
subdivision thereof, and (B) by a jurisdiction in which any payments are to be
made by any Borrower hereunder, other than the United States of America, or any
political subdivision of any thereof, and that would not have been imposed but
for the existence of a connection between such Lender and the jurisdiction
imposing such taxes, other than
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a connection arising as a result of this Agreement or the transactions
contemplated by this Agreement, except in the case of taxes described in this
clause (B), to the extent such taxes are imposed as a result of a change in the
law or regulations of any jurisdiction or any applicable treaty or regulations
or in the official interpretation of any such law, treaty or regulations by any
government authority charged with the interpretation or administration thereof
after the date of this Agreement). If any such Taxes are so levied or imposed,
Borrower agrees (A) to pay the full amount of such Taxes, and such additional
amounts as may be necessary so that every net payment of all amounts due
hereunder and under the Notes and other Credit Documents, after withholding or
deduction for or on account of any such Taxes (including additional sums payable
under this Section 4.8.), will not be less than the full amount provided for
herein had no such deduction or withholding been required, (B) to make such
withholding or deduction and (C) to pay the full amount deducted to the relevant
authority in accordance with applicable law. Borrower will furnish to the Agent
and each Lender, within 30 days after the date the payment of any Taxes is due
pursuant to applicable law, certified copies of tax receipts evidencing such
payment by Borrower. Borrower will indemnify and hold harmless the Agent and
each Lender and reimburse the Agent and each Lender upon written request for the
amount of any such Taxes so levied or imposed and paid by the Agent or Lender
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes were correctly or illegally
asserted. A certificate as to the amount of such payment by such Lender or the
Agent, absent manifest error, shall be final, conclusive and binding for all
purposes.
(ii) Each Lender that is organized under the laws of any jurisdiction other than
the United States of America or any State thereof (including the District of
Columbia) agrees to furnish to Borrower and the Agent, prior to the time it
becomes a Lender hereunder, two copies of either U.S. Internal Revenue Service
Form W-8ECI or U.S. Internal Revenue Service Form W-8BEN or any successor forms
thereto (wherein such Lender claims entitlement to complete exemption from U.S.
Federal withholding tax on interest paid by Borrower hereunder) and to provide
to Borrower and the Agent a new Form W-8ECI or Form W-8BEN or any successor
forms thereto if any previously delivered form is found to be incomplete or
incorrect in any material respect or upon the obsolescence of any previously
delivered form; provided, however, that no Lender shall be required to furnish a
form under this paragraph (ii) after the date that it becomes a Lender hereunder
if it is not entitled to claim an exemption from withholding under applicable
law.
(iii) Borrower shall also reimburse the Agent and each Lender, upon written
request, for any Taxes imposed (including, without limitation, Taxes imposed on
the overall net income of the Agent or Lender or its applicable Lending Office
pursuant to the laws of the jurisdiction in which the principal executive office
or the applicable Lending Office of the Agent or Lender is located) as the Agent
or Lender shall determine are payable by the Agent or Lender in respect of
amounts paid by or on behalf of Borrower to or on behalf of the Agent or Lender
pursuant to paragraph (i) hereof.
(iv) In addition to the documents to be furnished pursuant to Section
4.8(b)(ii), each Lender shall, promptly upon the reasonable written request of
the Borrower to that effect, deliver to the Borrower such other accurate and
complete forms or similar documentation as such Lender is legally able to
provide and as may be required from time to time by any applicable law, treaty,
rule or regulation or any jurisdiction in order to establish such Lender's tax
status for withholding purposed or as may otherwise be appropriate to eliminate
or minimize any Taxes on payments under this Agreement or the Notes.
(v) The Borrower shall not be required to pay any amounts pursuant to Section
4.8(b)(i) or (iii) to any Lender for the account of any Lending Officer of such
Lender in respect of any United States withholding taxes payable hereunder (and
the Borrower, if required by law to do so, shall be entitled to withhold such
amounts and pay such amounts to the United States Government) if the obligation
to pay such additional amounts would not have arisen but for a failure by such
Lender to comply with its obligations under Section 4.8(b)(ii), and such Lender
shall not be entitled to exemption from deduction or withholding of United
Stated Federal income tax in respect of the payment of such sum by the Borrower
hereunder for the account of such Lending Office for, in each case, any reason
other than a change in United States law or regulations by any governmental
authority charged with the interpretation or administration thereof (whether or
not having the force of law) after the date such Lender became a Lender
hereunder.
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(vi) Within sixty (60) days of the written request of the Borrower, each Lender
shall execute and deliver such certificates, forms or other documents, which can
be reasonably furnished consistent with the facts and which are reasonably
necessary to assist in applying for refunds of Taxes remitted hereunder.
(vii) To the extent that the payment of any Lender's Taxes by the Borrower gives
rise from time to time to a Tax Benefit (as hereinafter defined) to such Lender
in any jurisdiction other than the jurisdiction which imposed such Taxes, such
Lender shall pay to the Borrower the amount of each such Tax Benefit so
recognized or received. The amount of each Tax Benefit and, therefore, payment
to the Borrower will be determined from time to time by the relevant Lender in
its sole discretion, which determination shall be binding and conclusive on all
parties hereto. Each such payment will be due and payable by such Lender to the
Borrower within a reasonable time after the filing of the income tax return in
which such Tax Benefit is recognized or, in the case of any tax refund, after
the refund is received; provided, however, if at any time thereafter such Lender
is required to rescind such Tax Benefit or such Tax Benefit is otherwise
disallowed or nullified, the Borrower shall promptly, after notice thereof from
such Lender, repay to Lender the amount of such Tax Benefit previously paid to
the Borrower and rescinded, disallowed or nullified. For purposed of this
section, "Tax Benefit" shall mean the amount by which any Lender's income tax
liability for the taxable period in question is reduced below what would have
been payable had the Borrower not been required to pay the Lender's Taxes. In
case of any dispute with respect to the amount of any payment the Borrower shall
have no right to any offset or withholding of payments with respect to future
payments due to any Lender under this Agreement or the Notes.
(c) Subject to Section 4.4.(c)(ii), whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest thereon shall
be payable at the applicable rate during such extension.
(d) All computations of interest on Eurodollar Advances and fees shall be
made on the basis of a year of 360 days for the actual number of days (including
the first day but excluding the last day) occurring in the period for which such
interest or fees are payable (to the extent computed on the basis of days
elapsed). All computations of interest on Base Rate Advances and Offered Rate
Advances shall be made on the basis of a year of 365 days for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest is payable (to the extent computed on the basis
of days elapsed). Interest on Base Rate Advances shall be calculated based on
the Base Rate from and including the date of such Loan to but excluding the date
of the repayment or conversion thereof. Interest on Eurodollar Advances and
Offered Rate Advances shall be calculated as to each Interest Period from and
including the first day thereof to but excluding the last day thereof. Each
determination by the Agent of an interest rate or fee hereunder shall be made in
good faith and, except for manifest error, shall be final, conclusive and
binding for all purposes.
(e) Payment by the Borrower to the Agent in accordance with the terms of
this Agreement shall, as to the Borrower, constitute payment to the Lenders
under this Agreement.
SECTION 4.9. INTEREST RATE NOT ASCERTAINABLE, ETC.
In the event that the Agent shall have determined (which determination shall be
made in good faith and, absent manifest error, shall be final, conclusive and
binding upon all parties) that on any date for determining the Adjusted LIBO
Rate for any Interest Period, by reason of any changes arising after the date of
this Agreement affecting the London interbank market, or the Agent's position in
such market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of Adjusted
LIBO Rate, then, and in any such event, the Agent shall forthwith give notice
(by telephone confirmed in writing) to Borrower and to the Lenders, of such
determination and a summary of the basis for such determination. Until the Agent
notifies Borrower that the circumstances giving rise to the suspension described
herein no longer exist, the obligations of the Lenders to make or permit
portions of the Revolving Loans to remain outstanding past the last day of the
then current Interest Periods as Eurodollar Advances shall be suspended, and
such affected Advances shall bear the same interest as Base
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Rate Advances. Nothing set forth in this Section 4.9. shall prohibit the
Borrower from utilizing the provisions herein relating to Offered Rate Advances.
SECTION 4.10. ILLEGALITY.
(a) In the event that any Lender shall have determined (which determination
shall be made in good faith and, absent manifest error, shall be final,
conclusive and binding upon all parties) at any time that the making or
continuance of any Eurodollar Advance has become unlawful by compliance by such
Lender in good faith with any applicable law, governmental rule, regulation,
guideline or order (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful), then, in any such event, the
Lender shall give prompt notice (by telephone confirmed in writing) to Borrower
and to the Agent of such determination and a summary of the basis for such
determination (which notice the Agent shall promptly transmit to the other
Lenders).
(b) Upon the giving of the notice to Borrower referred to in subsection (a)
above, (i) Borrower's right to request and such Lender's obligation to make
Eurodollar Advances shall be immediately suspended, and such Lender shall make
an Advance as part of the requested Borrowing of Eurodollar Advances as a Base
Rate Advance, which Base Rate Advance, as the case may be, shall, for all other
purposes, be considered part of such Borrowing, and (ii) if the affected
Eurodollar Advance or Advances are then outstanding, Borrower shall immediately,
or if permitted by applicable law, no later than the date permitted thereby,
upon at least one Business Day's written notice to the Agent and the affected
Lender, convert each such Advance into a Base Rate Advance or Advances, provided
that if more than one Lender is affected at any time, then all affected Lenders
must be treated the same pursuant to this Section 4.10.(b).
SECTION 4.11. INCREASED COSTS.
(a) If, by reason of (x) after the date hereof, the introduction of or any
change (including, without limitation, any change by way of imposition or
increase of reserve requirements) in or in the interpretation of any law or
regulation, or (y) the compliance with any guideline or request from any central
bank or other governmental authority or quasi-governmental authority exercising
control over banks or financial institutions generally (whether or not having
the force of law):
(i) any Lender (or its applicable Lending Office) shall be subject
to any tax, duty or other charge with respect to its Eurodollar Advances, or its
obligation to make such Advances, or the basis of taxation of payments to any
Lender of the principal of or interest on its Eurodollar Advances or its
obligation to make Eurodollar Advances shall have changed (except for changes in
the tax on the overall net income of such Lender or its applicable Lending
Office imposed by the jurisdiction in which such Lender's principal executive
office or applicable Lending Office is located); or
(ii) any reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Lender's applicable Lending Office shall be imposed or deemed
applicable or any other condition affecting its Eurodollar Advances or its
obligation to make Eurodollar Advances shall be imposed on any Lender or its
applicable Lending Office or the London interbank market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Advances
(except to the extent already included in the determination of the applicable
Adjusted LIBO Rate for Eurodollar Advances) or its obligation to make Eurodollar
Advances, or there shall be a reduction in the amount received or receivable by
such Lender or its applicable Lending Office, then Borrower shall from time to
time (subject, in the case of certain Taxes, to the applicable provisions of
Section 4.8.(b)), upon written notice from and demand by such Lender to Borrower
(with a copy of such notice and demand to the Agent), pay to the Agent for the
account of such
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Lender within ten (10) Business Days after the date of such notice and demand,
additional amounts sufficient to indemnify such Lender against such increased
cost. A certificate as to the amount of such increased cost, submitted to
Borrower and the Agent by such Lender in good faith and accompanied by a
statement prepared by such Lender describing in reasonable detail the basis for
and calculation of such increased cost, shall, except for manifest error, be
final, conclusive and binding for all purposes.
(b) If any Lender shall advise the Agent that at any time, because of the
circumstances described in clauses (x) or (y) in Section 4.11.(a) or any other
circumstances beyond such Lender's reasonable control arising after the date of
this Agreement affecting such Lender or the London interbank market or such
Lender's position in such market, the Adjusted LIBO Rate as determined by the
Agent will not adequately and fairly reflect the cost to such Lender of funding
its Eurodollar Advances, then, and in any such event:
(i) the Agent shall forthwith give notice (by telephone confirmed
in writing) to Borrower and to the other Lenders of such
advice;
(ii) Borrower's right to request and such Lender's obligation to
make or permit portions of the Loans to remain outstanding
past the last day of the then current Interest Periods as
Eurodollar Advances shall be immediately suspended; and
(iii) in the event the affected Loan is a Revolving Loan, such
Lender shall make a Loan as part of the requested Borrowing
under the Revolving Loan Commitments of Eurodollar Advances as
a Base Rate Advance, which such Base Rate Advance shall, for
all other purposes, be considered part of such Borrowing.
SECTION 4.12. LENDING OFFICES.
(a) Each Lender agrees that, if requested by Borrower, it will use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate an alternate Lending Office with respect to any of its Eurodollar
Advances, affected by the matters or circumstances described in Sections
4.8.(b), 4.9., 4.10., 4.11. or 4.17. to reduce the liability of Borrower or
avoid the results provided thereunder, so long as such designation is not
disadvantageous to such Lender as reasonably determined by such Lender, which
determination shall be conclusive and binding on all parties hereto. Nothing in
this Section 4.12. shall affect or postpone any of the obligations of Borrower
or any right of any Lender provided hereunder.
(b) If any Lender that is organized under the laws of any jurisdiction
other than the United States of America or any State thereof (including the
District of Columbia) issues a public announcement with respect to the closing
of its lending offices in the United States such that any withholdings or
deductions and additional payments with respect to Taxes may be required to be
made by Borrower thereafter pursuant to Section 4.8.(b), such Lender shall use
reasonable efforts to furnish Borrower notice thereof as soon as practicable
thereafter; provided, however, that no delay or failure to furnish such notice
shall in any event release or discharge Borrower from its obligations to such
Lender pursuant to Section 4.8.(b) or otherwise result in any liability of such
Lender.
SECTION 4.13. FUNDING LOSSES.
Borrower shall compensate each Lender, upon its written request to Borrower
(which request shall set forth the basis for requesting such amounts in
reasonable detail and which request shall be made in good faith and, absent
manifest error, shall be final, conclusive and binding upon all of the parties
hereto), for all actual losses, expenses and liabilities (including, without
limitation, any interest paid by such Lender to lenders of funds borrowed by it
to make or carry its Eurodollar Advances to the extent not recovered by such
Lender in connection with the re-employment of such funds but excluding loss of
anticipated profits), which the Lender may sustain: (i) if for any reason (other
than a default by such Lender) a borrowing of, or conversion to or continuation
of, Eurodollar Advances to Borrower does not occur on the date specified
therefor in a Notice of Borrowing, Notice of Swing Line Borrowing, or Notice of
Conversion/Continuation (whether or not withdrawn), (ii) if any repayment
(including mandatory prepayments and any conversions pursuant to Section
4.10.(b)) of any Eurodollar Advances to Borrower occurs on a date which is not
the last
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day of an Interest Period applicable thereto, or (iii), if, for any reason,
Borrower defaults in its obligation to repay its Eurodollar Advances when
required by the terms of this Agreement.
SECTION 4.14. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR ADVANCES.
Calculation of all amounts payable to a Lender under this Article 4. shall be
made as though that Lender had actually funded its relevant Eurodollar Advances
through the purchase of deposits in the relevant market bearing interest at the
rate applicable to such Eurodollar Advances in an amount equal to the amount of
the Eurodollar Advances and having a maturity comparable to the relevant
Interest Period and through the transfer of such Eurodollar Advances from an
offshore office of that Lender to a domestic office of that Lender in the United
States of America; provided, however, that each Lender may fund each of its
Eurodollar Advances in any manner it sees fit and the foregoing assumption shall
be used only for calculation of amounts payable under this Article 4.
SECTION 4.15. APPORTIONMENT OF PAYMENTS.
Aggregate principal and interest payments in respect of Loans and payments in
respect of facility fees shall be apportioned among all outstanding Commitments
and Loans to which such payments relate, proportionately to the Lenders'
respective pro rata portions of such Commitments and outstanding Loans. The
Agent shall promptly distribute to each Lender at its payment office specified
by any Lender its share of all such payments received by the Agent on the same
Business Day as such payment is deemed to be received by the Agent.
SECTION 4.16. SHARING OF PAYMENTS, ETC.
If any Lender shall obtain any payment or reduction (including, without
limitation, any amounts received as adequate protection of a deposit treated as
cash collateral under the Bankruptcy Code) of the Obligations (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its Applicable Commitment Percentage of payments or
reductions on account of such Obligations obtained by all the Lenders, such
Lender shall forthwith (i) notify each of the other Lenders and Agent of such
receipt, and (ii) purchase from the other Lenders such participations in the
affected Obligations as shall be necessary to cause such purchasing Lender to
share the excess payment or reduction, net of costs incurred in connection
therewith, ratably with each of them, provided that if all or any portion of
such excess payment or reduction is thereafter recovered from such purchasing
Lender or additional costs are incurred, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery or such additional costs,
but without interest unless the Lender obligated to return such funds is
required to pay interest on such funds. Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 4.16.
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of Borrower in the amount of such
participation. Any payment received by the Agent or any Lender following the
occurrence and during the continuation of an Event of Default shall be
distributed pro rata amongst the Lenders based upon the percentage obtained by
dividing the Obligations owing to each Lender by the total amount of Obligations
on the date of receipt of such payment, with such amounts to be applied to the
outstanding Obligations in accordance with the terms of this Agreement.
SECTION 4.17. CAPITAL ADEQUACY.
Without limiting any other provision of this Agreement, in the event that any
Lender shall have determined that any law, treaty, governmental (or
quasi-governmental) rule, regulation, guideline or order regarding capital
adequacy not currently in effect or fully applicable as of the Closing Date, or
any change therein or in the interpretation or application thereof after the
Closing Date, or compliance by such Lender with any request or directive
regarding capital adequacy not currently in effect or fully applicable as of the
Closing
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Date (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful) from a central bank or governmental
authority or body having jurisdiction, does or shall have the effect of reducing
the rate of return on such Lender's capital as a consequence of its obligations
hereunder to a level below that which such Lender could have achieved but for
such law, treaty, rule, regulation, guideline or order, or such change or
compliance (taking into consideration such Lender's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then within
ten (10) Business Days after written notice and demand by such Lender (with
copies thereof to the Agent), Borrower shall from time to time pay to such
Lender additional amounts sufficient to compensate such Lender for such
reduction (but, in the case of outstanding Base Rate Advances, without
duplication of any amounts already recovered by such Lender by reason of an
adjustment in the applicable Base Rate). Each certificate as to the amount
payable under this Section 4.17. (which certificate shall set forth the basis
for requesting such amounts in reasonable detail), submitted to Borrower by any
Lender in good faith, shall, absent manifest error, be final, conclusive and
binding for all purposes.
SECTION 4.18. LIMITATION ON CERTAIN PAYMENT OBLIGATIONS.
(a) Each Lender or the Agent shall make written demand on the Borrower for
indemnification or compensation pursuant to Section 4.8.(b) no later than six
months after the earlier of (i) the date on which Lender or the Agent makes
payment of any such Taxes and (ii) the date on which the relevant taxing
authority or other governmental authority makes written demand upon such Lender
or Agent for the payment of such Taxes.
(b) Each Lender or Agent shall make written demand on the Borrower for
indemnification or compensation pursuant to Section 4.13. no later than six
months after the event giving rise to the claim for indemnification or
compensation occurs.
(c) Each Lender or the Agent shall make written demand on the Borrower for
indemnification or compensation pursuant to Section 4.11. or Section 4.17. no
later than six months after such Lender or Agent receives actual notice or
obtains actual knowledge of the promulgation of a law, rule, order,
interpretation or occurrence of another event giving rise to a claim pursuant to
such provisions.
(d) In the event that the Lenders or Agent fail to give the Borrower notice
within the time limitations set forth above, the Borrower shall not have any
obligation to pay amounts with respect to such claims accrued prior to six
months preceding any written demand therefor.
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ARTICLE 5. CONDITIONS TO BORROWINGS
The obligation of each Lender to make Advances to Borrower is subject to the
satisfaction of the following conditions:
SECTION 5.1. CONDITIONS PRECEDENT TO INITIAL LOANS.
At the time of the making of the initial Loans hereunder on the Closing Date,
all obligations of Borrower hereunder incurred prior to the initial Loans
(including, without limitation, Borrower's obligations to reimburse the
reasonable fees and expenses of counsel to the Agent and any fees and expenses
payable to the Agent as previously agreed with Borrower), shall have been paid
in full, and the Agent shall have received the following, in form and substance
reasonably satisfactory in all respects to the Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly completed Revolving Credit Notes evidencing the Revolving
Credit Commitments and the duly completed Swing Line Note evidencing
the Swing Line Commitment;
(c) the duly executed Subsidiary Guarantee from all Subsidiaries other than
Unrestricted Subsidiaries; provided, however, that in lieu of a
guaranty from any Restricted Subsidiary which is incorporated under any
jurisdiction outside of the United States of America (or any of its
territories), the owner of 65% of the capital stock of such Restricted
Subsidiary, shall deliver a duly executed Pledge Agreement covering
such shares of such non-domestic subsidiary, together with delivery of
the original stock certificate evidencing such shares, undated stock
powers executed in blank, and such documents shall be accompanied by
such other documents as the Agent may reasonably request (including
without limitation, certificates of incorporation, incumbency
certificates of such entities, articles of incorporation and bylaws,
membership operating agreements, opinion letters and appropriate
resolutions of the Board of Directors of any such Subsidiary
Guarantor);
(d) certificates of the Secretary or Assistant Secretary of the Borrower
and the Subsidiary Guarantors attaching and certifying copies of the
resolutions of the board of directors of the Borrower or Subsidiary
Guarantor, as the case may be, authorizing as applicable the execution,
delivery and performance of the Credit Documents;
(e) certificates of the Secretary or an Assistant Secretary of the Borrower
and each Subsidiary Guarantor certifying (i) the name, title and true
signature of each officer of the Borrower or Subsidiary Guarantor, as
the case may be, executing the Credit Documents, and (ii) the bylaws of
the Borrower and the Subsidiary Guarantors;
(f) copies of the certificate or articles of incorporation of the Borrower
and each of its Restricted Subsidiaries certified by the Secretary or
Assistant Secretary of the Borrower or such Restricted Subsidiaries, as
appropriate, together with certificates of good standing or existence,
as may be available from the Secretary of State of the jurisdiction of
incorporation or organization of the Borrower and each of its
Restricted Subsidiaries, and each other jurisdiction where the
ownership of property or the conduct of its business require the
Borrower or its Restricted Subsidiaries to be qualified, except where a
failure to be so qualified would not have a Materially Adverse Effect;
(g) certificate of Borrower in substantially the form of Exhibit "G"
attached hereto and appropriately completed;
(h) the duly executed Termination Letter, in substantially the form of
Exhibit "N" attached hereto, pursuant to which the Prior Agreement is
terminated and Borrower instructs the Agent to use the proceeds of
Loans hereunder to be applied to satisfy all obligations under the
Prior Agreement;
(i) a certificate of Borrower certifying that since March 31, 2000, there
shall have been no change which has had or is reasonably likely to have
a Materially Adverse Effect;
(j) the favorable opinion of (a) Robert McIntosh, Esquire, corporate
counsel to the Borrower and the Subsidiary Guarantors as to certain
corporate matters, and (b) King & Spalding, counsel to the
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Borrower and the Subsidiary Guarantors as to certain matters, in the
form of Exhibits H-1 and H-2, respectively, in each case addressed to
the Agent and each of the Lenders;
(k) copies of all documents and instruments, including all consents,
authorizations and filings, required under the articles or certificate
of incorporation and bylaws or other organizational or governing
documents, under any Requirement of Law or by any material Contractual
Obligation of the Borrower and its Restricted Subsidiaries, in
connection with the execution, delivery, performance, validity and
enforceability of the Credit Documents and the other documents to be
executed and delivered hereunder, and such consents, authorizations,
filings and orders shall be in full force and effect and all applicable
waiting periods shall have expired;
(l) a certificate of insurance issued on behalf of insurers of the Borrower
and all Restricted Subsidiaries, describing in reasonable detail the
types and amounts of insurance (property and liability) maintained by
the Borrower and all Restricted Subsidiaries; and
(m) any other document, opinion or certificate reasonably requested by the
Agent or the Required Lenders assuring the Agent and the Lenders that
all corporate proceedings and all other legal matters in connection
with the authorization, legality, validity and enforceability of the
Credit Documents are in form and substance satisfactory to the Lenders.
SECTION 5.2. CONDITIONS TO ALL LOANS.
At the time of the making of all Loans, including the initial Loans hereunder,
(before as well as after giving effect to such Loans and to the proposed use of
the proceeds thereof), the following conditions shall have been satisfied or
shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Borrower contained herein shall
be true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of
the date of such Loans except to the extent they expressly relate to an
earlier date or have been updated to the extent permitted herein;
(c) since the date of the most recent financial statements of the
Consolidated Companies described in Section 6.14., there shall have
been no change which has had or is reasonably likely to have a
Materially Adverse Effect (whether or not any notice with respect to
such change has been furnished to the Lenders pursuant to Section
7.7.);
(d) there shall be no action or proceeding instituted or pending before any
court or other governmental authority or, to the knowledge of Borrower,
threatened (i) which is reasonably likely to have a Materially Adverse
Effect, or (ii) seeking to prohibit or restrict one or more of the
Borrower's and its Restricted Subsidiaries' right to own or operate any
portion of its business or assets, or to compel one or more of the
Borrower and its Restricted Subsidiaries to dispose of or hold separate
all or any portion of its businesses or assets, where such portion or
portions of such business(es) or assets, as the case may be, constitute
a Material portion of the total businesses or assets of the Borrower
and its Restricted Subsidiaries;
(e) the Loans to be made and the use of proceeds thereof shall not
contravene, violate or conflict with, or involve the Agent or any
Lender in a violation of, any law, rule, injunction, or regulation, or
determination of any court of law or other governmental authority
applicable to Borrower; and
(f) the Agent shall have received such other documents or legal opinions as
the Agent or any Lender may reasonably request, all in form and
substance reasonably satisfactory to the Agent.
Each request for a Borrowing and the acceptance by Borrower of the proceeds
thereof shall constitute a representation and warranty by Borrower, as of the
date of the Loans comprising such Borrowing, that the applicable conditions
specified in Sections 5.1. and 5.2. have been satisfied.
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ARTICLE 6. REPRESENTATIONS AND WARRANTIES
Borrower (as to itself and all Restricted Subsidiaries) represents and warrants
as follows:
SECTION 6.1. CORPORATE EXISTENCE; COMPLIANCE WITH LAW.
Each of the Borrower and its Restricted Subsidiaries is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation. Each of the Borrower and its Restricted
Subsidiaries (i) has the corporate power and authority and the legal right to
own and operate its property and to conduct its business, (ii) is duly qualified
as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership of property or the conduct of its business
requires such qualification, and (iii) is in compliance with all Requirements of
Law, where (a) the failure to have such power, authority and legal right as set
forth in clause (i), (b) the failure to be so qualified or in good standing as
set forth in clause (ii), or (c) the failure to comply with Requirements of Law
as set forth in clause (iii), is reasonably likely, in the aggregate, to have a
Materially Adverse Effect. The jurisdiction of incorporation or organization,
and the ownership of all issued and outstanding capital stock, for each
Subsidiary as of the date of this Agreement is accurately described on Schedule
6.1. Schedule 6.1. may be updated from time to time by the Borrower by giving
written notice thereof to the Agent.
SECTION 6.2. CORPORATE POWER; AUTHORIZATION.
Each of the Borrower and its Restricted Subsidiaries has the corporate power and
authority to make, deliver and perform the Credit Documents to which it is a
party and has taken all necessary corporate action to authorize the execution,
delivery and performance of such Credit Documents. No consent or authorization
of, or filing with, any Person (including, without limitation, any governmental
authority), is required in connection with the execution, delivery or
performance by the Borrower or its Restricted Subsidiaries, or the validity or
enforceability against the Borrower or its Restricted Subsidiaries, of the
Credit Documents, other than such consents, authorizations or filings which have
been made or obtained.
SECTION 6.3. ENFORCEABLE OBLIGATIONS.
This Agreement has been duly executed and delivered, and each other Credit
Document will be duly executed and delivered, by the Borrower and its Restricted
Subsidiaries, as applicable, and this Agreement constitutes, and each other
Credit Document when executed and delivered will constitute, legal, valid and
binding obligations of the Borrower and its Restricted Subsidiaries executing
the same, enforceable against such Borrower and its Restricted Subsidiaries in
accordance with their respective terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
the enforcement of creditors' rights generally and by general principles of
equity.
SECTION 6.4. NO LEGAL BAR.
The execution, delivery and performance by the Borrower and its Restricted
Subsidiaries of the Credit Documents will not violate their articles or
certificate of incorporation, bylaws or other organizational or governing
documents or any Requirement of Law or cause a breach or default under any of
their respective Material Contractual Obligations.
SECTION 6.5. NO MATERIAL LITIGATION.
Except as set forth on Schedule 6.5., no litigation, investigation or proceeding
of or before any court, tribunal, arbitrator or governmental authority is
pending or, to the knowledge of any Executive Officer of the Borrower,
threatened by or against any of the Borrower and its Restricted Subsidiaries, or
against any of their respective properties or revenues, existing or future (a)
with respect to any Credit Document, or
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any of the transactions contemplated hereby or thereby, or (b) which, if
adversely determined, is reasonably likely to have a Materially Adverse Effect.
SECTION 6.6. INVESTMENT COMPANY ACT, ETC.
Neither the Company nor any of its Restricted Subsidiaries is an "investment
company" or a company "controlled" by an "investment company" (as each of the
quoted terms is defined or used in the Investment Company Act of 1940, as
amended). Neither the Company nor any of its Restricted Subsidiaries is subject
to regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, or any foreign, federal or local statute or regulation limiting its
ability to incur indebtedness for money borrowed, guarantee such indebtedness,
or pledge its assets to secure such indebtedness, as contemplated hereby or by
any other Credit Document.
SECTION 6.7. MARGIN REGULATIONS.
No part of the proceeds of any of the Loans will be used to purchase or carry
any "margin stock" (within the meaning of the Margin Regulations) or extend
credit to others for such purposes or for any other purpose which violates, or
which would be inconsistent or not in compliance with, the provisions of the
applicable Margin Regulations.
SECTION 6.8. COMPLIANCE WITH ENVIRONMENTAL LAWS.
(a) The Borrower and its Restricted Subsidiaries have received no notices
of claims or potential liability under, and are in compliance with, all
applicable Environmental Laws, where such claims and liabilities under, and
failures to comply with, such statutes, regulations, rules, ordinances, laws or
licenses, is reasonably likely to result in penalties, fines, claims or other
liabilities to the Borrower and its Restricted Subsidiaries in amounts that
would have a Materially Adverse Effect, either individually or in the aggregate
(including any such penalties, fines, claims, or liabilities relating to the
matters set forth on Schedules 6.8.(b) and (c)), except as set forth on Schedule
6.8.(a)).
(b) Except as set forth on Schedule 6.8.(b), none of the Borrower and its
Restricted Subsidiaries has received any notice of violation, or notice of any
action, either judicial or administrative, from any governmental authority
(whether United States or foreign) relating to the actual or alleged violation
of any Environmental Law, including, without limitation, any notice of any
actual or alleged spill, leak, or other release of any Hazardous Substance,
waste or hazardous waste by the Borrower or any of its Restricted Subsidiaries
or its employees or agents, or as to the existence of any contamination on any
properties owned by the Borrower or any of its Restricted Subsidiaries, where
any such violation, spill, leak, release or contamination is reasonably likely
to result in penalties, fines, claims or other liabilities to the Borrower and
its Restricted Subsidiaries in amounts that would have a Materially Adverse
Effect, either individually or in the aggregate.
(c) Except as set forth on Schedule 6.8.(c), the Borrower and its
Restricted Subsidiaries have obtained all necessary governmental permits,
licenses and approvals for the operations conducted on their respective
properties, including without limitation, all required material permits,
licenses and approvals for (i) the emission of air pollutants or contaminants,
(ii) the treatment or pretreatment and discharge of waste water or storm water,
(iii) the treatment, storage, disposal or generation of hazardous wastes, (iv)
the withdrawal and usage of ground water or surface water, and (v) the disposal
of solid wastes, in any such case where the failure to have such license, permit
or approval is reasonably likely to have a Materially Adverse Effect.
SECTION 6.9. INSURANCE.
The Borrower and its Restricted Subsidiaries currently maintain insurance with
respect to their respective properties and businesses, with financially sound
and reputable insurers, having coverages against losses or damages of the kinds
customarily insured against by reputable companies in the same or similar
businesses, such insurance being in amounts no less than those amounts which are
customary for such companies
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under similar circumstances. The Borrower and its Restricted Subsidiaries have
paid all material amounts of insurance premiums now due and owing with respect
to such insurance policies and coverages, and such policies and coverages are in
full force and effect.
SECTION 6.10. NO DEFAULT.
None of the Borrower and its Restricted Subsidiaries is in default under or with
respect to any Contractual Obligation in any respect which has had or is
reasonably likely to have a Materially Adverse Effect.
SECTION 6.11. NO BURDENSOME RESTRICTIONS.
Except as set forth on Schedule 6.11., none of the Borrower and its
Restricted Subsidiaries is a party to or bound by any Contractual Obligation or
Requirement of Law or any provision of its articles or certificate of
incorporation, bylaws or other organizational or governing documents which has
had or is reasonably likely to have a Materially Adverse Effect.
SECTION 6.12. TAXES.
The Borrower and its Restricted Subsidiaries have filed all Federal tax returns
and, to the knowledge of the Executive Officers of the Borrower, the Borrower
and its Restricted Subsidiaries have filed all other tax returns which are
required to have been filed in any jurisdiction; the Borrower and its Restricted
Subsidiaries have paid all taxes shown to be due and payable on such Federal
returns and other returns and all other taxes, assessments, fees and other
charges payable by them, in each case, to the extent the same have become due
and payable and before they have become delinquent, except for the filing of any
such returns or the payment of any taxes, assessments, fees and other charges
the amount, applicability or validity of which is currently being contested in
good faith by appropriate proceedings and with respect to which the Borrower or
a Restricted Subsidiary, as the case may be, has set aside on its books reserves
(segregated to the extent required by GAAP) deemed by it in good faith to be
adequate. The Borrower has not received written notice of any proposed Material
tax assessment with respect to Federal income taxes against the Borrower or any
Restricted Subsidiary nor does any Executive Officer of the Borrower know of any
Material Federal income tax liability on the part of the Borrower or any
Restricted Subsidiary other than any such assessment or liability which is
adequately provided for on the books of the Borrower and its Restricted
Subsidiaries.
SECTION 6.13. SUBSIDIARIES.
Except as disclosed on Schedule 6.13., Borrower has no Subsidiaries and neither
Borrower nor any Subsidiary is a joint venture partner or general partner in any
partnership. Schedule 6.13. indicates which Subsidiaries are Restricted
Subsidiaries and which Subsidiaries are Unrestricted Subsidiaries. Schedule
6.13. may be updated from time to time by the Borrower by giving written notice
thereof to the Agent.
SECTION 6.14. FINANCIAL STATEMENTS; FISCAL YEAR AND FISCAL QUARTERS.
Borrower has furnished to the Agent and the Lenders (i) the audited consolidated
balance sheets as of September 30, 1999, 1998, and 1997 of Borrower and the
related consolidated statements of income, shareholders' equity and cash flows
for the fiscal years then ended, including in each case the related notes and
(ii) the unaudited consolidated balance sheets as of March 31, 2000 of the
Borrower and the related consolidated statements of income, shareholders' equity
and cash flows for the fiscal quarter then ended, including in each case the
related notes. The foregoing financial statements fairly present in all material
respects the consolidated financial condition of Borrower as at the dates
thereof and results of operations for
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such periods in conformity with GAAP consistently applied (subject, in the case
of the quarterly financial statements, to normal year-end audit adjustments and
the absence of certain notes). The Borrower and its Restricted Subsidiaries
taken as a whole did not have any material contingent obligations, contingent
liabilities, or material liabilities for known taxes, long-term leases or
unusual forward or long-term commitments required to be reflected in the
foregoing financial statements or the notes thereto that are not so reflected.
Since September 30, 1999, there has been no change with respect to the Borrower
and its Restricted Subsidiaries which has had or is reasonably likely to have a
Materially Adverse Effect. The Borrower's fiscal year commences October 1st of
each year and ends on September 30th of each year. The Borrower's fiscal
quarters end on December 31st, March 30th, June 30th and September 30th of each
year.
SECTION 6.15. ERISA.
Except as disclosed on Schedule 6.15.:
(1) Identification of Plans. None of the Borrower and its Restricted
Subsidiaries nor any of their respective ERISA Affiliates maintains or
contributes to, or has during the past seven years maintained or contributed to,
any Plan that is subject to Title IV of ERISA;
(2) Compliance. Each Plan maintained by the Borrower and its Restricted
Subsidiaries have at all times been maintained, by their terms and in operation,
in compliance with all applicable laws, and the Borrower and its Restricted
Subsidiaries are subject to no tax or penalty with respect to any Plan of such
Consolidated Company or any ERISA Affiliate thereof, including without
limitation, any tax or penalty under Title I or Title IV of ERISA or under
Chapter 43 of the Tax Code, or any tax or penalty resulting from a loss of
deduction under Sections 162, 404, or 419 of the Tax Code, where the failure to
comply with such laws, and such taxes and penalties, together with all other
liabilities referred to in this Section 6.15. (taken as a whole), would in the
aggregate have a Materially Adverse Effect;
(3) Liabilities. The Borrower and its Restricted Subsidiaries are subject
to no liabilities (including withdrawal liabilities) with respect to any Plans
of such Borrower and its Restricted Subsidiaries or any of their ERISA
Affiliates, including without limitation, any liabilities arising from Titles I
or IV of ERISA, other than obligations to fund benefits under an ongoing Plan
and to pay current contributions, expenses and premiums with respect to such
Plans, where such liabilities, together with all other liabilities referred to
in this Section 6.15. (taken as a whole), would in the aggregate have a
Materially Adverse Effect;
(4) Funding. The Borrower and its Restricted Subsidiaries and, with respect
to any Plan which is subject to Title IV of ERISA, each of their respective
ERISA Affiliates, have made full and timely payment of all amounts (A) required
to be contributed under the terms of each Plan and applicable law, and (B)
required to be paid as expenses (including PBGC or other premiums) of each Plan,
where the failure to pay such amounts (when taken as a whole, including any
penalties attributable to such amounts) would have a Materially Adverse Effect.
No Plan subject to Title IV of ERISA has an "amount of unfunded benefit
liabilities" (as defined in Section 4001(a)(18) of ERISA), determined as if such
Plan terminated on any date on which this representation and warranty is deemed
made, in any amount which, together with all other liabilities referred to in
this Section 6.15. (taken as a whole), would have a Materially Adverse Effect if
such amount were then due and payable. The Borrower and its Restricted
Subsidiaries are subject to no liabilities with respect to post-retirement
medical benefits in any amounts which, together with all other liabilities
referred to in this Section 6.15. (taken as a whole), would have a Materially
Adverse Effect if such amounts were then due and payable.
Schedule 6.15., as it applies to paragraph (1) above, may be updated from time
to time by the Borrower by giving written notice thereof to the Agent.
SECTION 6.16. PATENTS, TRADEMARKS, LICENSES, ETC.
Except as set forth on Schedule 6.16.,
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(a) (i) the Borrower and its Restricted Subsidiaries have obtained and hold
in full force and effect all material patents, trademarks, service marks, trade
names, copyrights, licenses and other such rights, free from burdensome
restrictions, which are necessary for the operation of their respective
businesses as presently conducted, and (ii) to the best of Borrower's knowledge,
no product, process, method, service or other item presently sold by or employed
by the Borrower or any of its Restricted Subsidiaries in connection with such
business infringes any patents, trademark, service mark, trade name, copyright,
license or other right owned by any other person and there is not presently
pending, or to the knowledge of Borrower, threatened, any claim or litigation
against or affecting the Borrower or any of its Restricted Subsidiaries
contesting such Person's right to sell or use any such product, process, method,
substance or other item where the result of such failure to obtain and hold such
benefits or such infringement would have a Materially Adverse Effect.
(b) (i) the Borrower and its Restricted Subsidiaries have obtained and hold
in full force and effect all licenses and permits which are necessary for the
operation of their respective businesses as presently conducted, and (ii) to the
best of Borrower's knowledge, there is not presently pending, or to the
knowledge of Borrower, threatened, any claim or litigation against or affecting
the Borrower or any of its Restricted Subsidiaries seeking to terminate or
cancel the Borrower's or Restricted Subsidiary's ability to use such license or
permit where the result of such failure to obtain and hold such licenses and
permits would have a Materially Adverse Effect.
SECTION 6.17. OWNERSHIP OF PROPERTY; LIENS.
(a) Except as set forth on Schedule 6.17., (i) each of the Borrower and its
Restricted Subsidiaries has good and marketable fee simple title to or a valid
leasehold interest in all of its real property and good title to, or a valid
leasehold interest in, all of its other property, as such properties are
reflected in the consolidated balance sheet of the Borrower and its Restricted
Subsidiaries as of September 30, 1999 referred to in Section 6.14. (other than
properties disposed of in the ordinary course of business since such date or as
otherwise permitted by the terms of this Agreement) except where the failure to
hold such title, leasehold interest or possession would not have a Materially
Adverse Effect, , , subject to no Lien or title defect of any kind, except Liens
permitted by Section 8.2. and (ii) the Borrower and its Restricted Subsidiaries
enjoy peaceful and undisturbed possession under all of their respective leases.
(b) As of the date of this Agreement, the property and assets owned by each
of the Borrower and its Restricted Subsidiaries are not subject to any Lien
securing any Indebtedness or other obligation in excess of $5,000,000
individually other than as described on Schedule 6.18 hereof.
SECTION 6.18. INDEBTEDNESS.
Except for the Indebtedness outstanding pursuant to the Prior Agreements to be
refinanced on the Closing Date and as set forth on Schedule 6.18. for each of
the Borrower and its Restricted Subsidiaries, as of the date hereof none of the
Borrower and its Restricted Subsidiaries is an obligor in respect of any
Indebtedness for Borrowed Money in excess of $5,000,000 individually, or any
commitment to create or incur any Indebtedness for Borrowed Money in excess of
$5,000,000 individually.
SECTION 6.19. FINANCIAL CONDITION.
On the Closing Date and after giving effect to the transactions
contemplated by this Agreement and the other Credit Documents, including without
limitation, the use of the proceeds of the Loans as provided in Articles 2. and
3. (i) the assets of each of the Borrower and its Restricted Subsidiaries at
fair valuation and based on their present fair saleable value will exceed such
company's debts, including contingent liabilities, (ii) the remaining capital of
each of the Borrower and its Restricted Subsidiaries will not be
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unreasonably small to conduct such company's business, and (iii) the Borrower
and each of its Restricted Subsidiaries will not have incurred debts, or have
intended to incur debts, beyond such company's ability to pay such debts as they
mature. For purposes of this Section 6.19., "debt" means any liability on a
claim, and "claim" means (a) the right to payment, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured, or (b)
the right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
SECTION 6.20. LABOR MATTERS.
Except as set forth in Schedule 6.20., the Borrower and its Restricted
Subsidiaries have experienced no strikes, labor disputes, slow downs or work
stoppages due to labor disagreements which are reasonably likely to have, a
Materially Adverse Effect, and, to the best knowledge of the Executive Officers
of the Borrower, there are no such strikes, disputes, slow downs or work
stoppages threatened against the Borrower or any of its Restricted Subsidiaries
except as disclosed in writing to the Agent. The hours worked and payment made
to employees of the Borrower and its Restricted Subsidiaries have not been in
violation in any material respect of (including any possible penalties under)
the Fair Labor Standards Act or any other applicable law dealing with such
matters, and all payments due from the Borrower and its Restricted Subsidiaries,
or for which any claim may be made against the Borrower and its Restricted
Subsidiaries, on account of wages and employee health and welfare insurance and
other benefits have been paid or accrued as liabilities on the books of the
Borrower and its Restricted Subsidiaries, in each case where the failure to
comply with such laws or to pay or accrue such liabilities is reasonably likely
to have a Materially Adverse Effect.
SECTION 6.21. PAYMENT OR DIVIDEND RESTRICTIONS.
Except as described on Schedule 6.21., none of the Borrower and its Restricted
Subsidiaries is party to or subject to any agreement or understanding
restricting or limiting its ability to pay dividends or make other
distributions.
SECTION 6.22. DISCLOSURE.
(a) Neither this Agreement nor any financial statements delivered to
the Lenders nor in the most recent version of any other document, certificate or
written statement furnished to the Lenders by or on behalf of the Borrower or
any of its Restricted Subsidiaries in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein or herein not misleading, it being understood that the representation
set forth in this Section 6.22.(a) shall not apply to any financial projections
or other pro forma financial information.
(b) The financial projections and other pro forma financial information
contained in the information referred to in subsection (a) above were based on
good faith estimates and assumptions believed by the Borrower and its Restricted
Subsidiaries to be
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<PAGE> 44
reasonable at the time made and at the time furnished to the Agent and/or any
Lender, it being recognized by the Lenders that such projections and other pro
forma financial information as to future events may differ from the actual
results for such period or periods.
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<PAGE> 45
ARTICLE 7. AFFIRMATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note shall remain
unpaid, Borrower will:
SECTION 7.1. CORPORATE EXISTENCE, ETC.
Preserve and maintain, and cause each of the Restricted Subsidiaries to preserve
and maintain, its corporate existence (except as otherwise permitted pursuant to
Section 8.4.), its material rights, franchises, and licenses, and its material
patents and copyrights (for the scheduled duration thereof), trademarks, trade
names, and service marks, necessary or desirable in the normal conduct of its
business, and its qualification to do business as a foreign corporation in all
jurisdictions where it conducts business or other activities making such
qualification necessary, where the failure to be so qualified is reasonably
likely to have a Materially Adverse Effect.
SECTION 7.2. COMPLIANCE WITH LAWS, ETC.
Comply, and cause each of its Restricted Subsidiaries to comply with all
Requirements of Law (including, without limitation, the Environmental Laws
subject to the exceptions set forth in Section 6.8. where the penalties, claims,
fines, and other liabilities resulting from noncompliance with such
Environmental Laws do not involve amounts Material in the aggregate) and
Contractual Obligations applicable to or binding on any of them where the
failure to comply with such Requirements of Law and Contractual Obligations is
reasonably likely to have a Materially Adverse Effect.
SECTION 7.3. PAYMENT OF TAXES AND CLAIMS, ETC.
File and cause each Restricted Subsidiary to file all Federal, state,
local and foreign tax returns that are required to be filed by each of them and
will pay or make provision for the payment of all taxes that have become due
pursuant to such returns or pursuant to any assessment in respect thereof
received by the Borrower or any Restricted Subsidiary, and the Borrower and each
Restricted Subsidiary will pay or cause to be paid all other taxes, assessments,
fees and other governmental charges and levies which, to the knowledge of the
Executive Officers of the Borrower or any Restricted Subsidiary, are due and
payable before the same become delinquent, except only such taxes and
assessments as are being contested in good faith by appropriate and timely
proceedings and as to which adequate reserves have been established in
accordance with GAAP.
SECTION 7.4. KEEPING OF BOOKS.
Keep, and cause each of its Restricted Subsidiaries to keep, proper books of
record and account, containing complete and accurate entries of all their
respective financial and business transactions.
SECTION 7.5. VISITATION, INSPECTION, ETC.
Permit, and cause each of its Restricted Subsidiaries to permit, any
representative of the Agent or any Lender, at the Agent's or such Lender's
expense, to visit and inspect any of its property, to examine its books and
records and to make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with its officers, all at such reasonable times
and as often as the Agent or such Lender may reasonably request after reasonable
prior notice to Borrower; provided, however, that at any time following the
occurrence and during the continuance of a Default or an Event of Default, no
prior notice to Borrower shall be required.
SECTION 7.6. INSURANCE; MAINTENANCE OF PROPERTIES.
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<PAGE> 46
(a) Maintain or cause to be maintained with financially sound and reputable
insurers, insurance with respect to its properties and business, and the
properties and business of its Restricted Subsidiaries, against loss or damage
of the kinds customarily insured against by reputable companies in the same or
similar businesses, such insurance to be of such types and in such amounts and
subject to such deductibles and self-insurance programs as the Borrower in its
judgment deems reasonable; provided, however, that in any event Borrower shall
use its best efforts to maintain, or cause to be maintained, insurance in
amounts and with coverages not materially less favorable to the Borrower or any
of its Restricted Subsidiaries as in effect on the date of this Agreement,
except where the costs of maintaining such insurance would, in the judgment of
the Borrower, be excessive.
(b) Cause, and cause each of the Borrower and its Restricted Subsidiaries
to cause, all properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, settlements and improvements thereof, all as in the
judgment of Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent Borrower from
discontinuing the operation or maintenance of any such properties if such
discontinuance is, in the judgment of Borrower, desirable in the conduct of its
business or the business of the Borrower or any of its Restricted Subsidiaries.
(c) Cause a summary, set forth in format and detail reasonably acceptable
to the Agent, of the types and amounts of insurance (property and liability)
maintained by the Borrower and its Restricted Subsidiaries to be delivered to
the Agent on or before thirty (30) days after the Closing Date.
SECTION 7.7. FINANCIAL REPORTS; OTHER NOTICES.
The Borrower will furnish to the Agent and each Lender:
(a) within forty-five (45) days after the end of each of the first three
quarterly accounting periods of each of its fiscal years (and, in any event, in
each case as soon as prepared), the quarterly unaudited consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of such fiscal quarter
and the related unaudited consolidated statements of income and cash flows
(together with all footnotes thereto) of the Borrower and its Subsidiaries for
such fiscal quarter and the then elapsed portion of such fiscal year, setting
forth in each case in comparative form the figures for the corresponding quarter
and the corresponding portion of Borrower's previous fiscal year, accompanied by
a certificate, dated the date of furnishing, signed by a Financial Officer of
the Borrower to the effect that such financial statements accurately present in
all material respects the consolidated financial condition of the Borrower and
its Subsidiaries and that such financial statements have been prepared in
accordance with GAAP consistently applied (subject to year end adjustments);
provided, however, during any period that the Borrower has consolidated
Subsidiaries which are not Consolidated Companies, the Borrower shall also
provide such financial information in a form sufficient to enable the Agent and
the Lenders to determine the compliance of the Borrower with the terms of this
Agreement with respect to the Consolidated Companies
(b) within ninety (90) days after the end of each of its fiscal years (and,
in any event, as soon as available), the annual audited report for that fiscal
year for the Borrower and its Subsidiaries, containing a consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of such fiscal year and
the related consolidated statements of income, stockholders' equity and cash
flows (together with all footnotes thereto) of the Borrower and its Subsidiaries
for such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year (which financial statements shall be reported on by
the Borrower's independent certified public accountants, such report to state
that such financial statements fairly present in all material respects the
consolidated financial condition and results of operation of the Borrower and
its Subsidiaries in accordance with GAAP and to be without any material
qualifications or exceptions); provided, however, during any period that the
Borrower has consolidated Subsidiaries which are not Consolidated Companies, the
Borrower shall also provide such financial information in a form sufficient to
enable the Agent and the Lenders to determine the compliance of the Borrower
with the terms of this Agreement with respect to the Consolidated Companies;
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<PAGE> 47
(c) within forty-five (45) days after the end of each of its first three
quarterly accounting periods and within ninety (90) days after the end of its
annual accounting period, a statement certified as true and correct by a
Financial Officer of the Borrower, substantially in the form of Exhibit "C"
hereto, reflecting compliance with Sections 8.1. , 8.2., 8.3., 8.4., and 8.9
hereof, with back-up material setting forth in reasonable detail such
calculations attached thereto and stating whether any Default or Event of
Default has occurred;
(d) within forty-five (45) days after the end of each of its quarterly
accounting periods, a statement certified as true and correct by a Financial
Officer of the Borrower setting forth the Total Funded Debt to EBITDA ratio as
of the last day of such quarterly accounting period;
(e) promptly upon the filing thereof or otherwise becoming available,
copies of all financial statements, annual, quarterly and special reports, proxy
statements and notices sent or made available generally by Borrower to its
public security holders, of all regular and periodic reports and all
registration statements and prospectuses, if any, filed by any of them with any
securities exchange or with the Securities and Exchange Commission, and of all
press releases and other statements made available generally to the public
containing Material developments in the business or financial condition of
Borrower and its Restricted Subsidiaries;
(f) promptly upon receipt thereof, copies of all financial statements of,
and all reports submitted by, independent public accountants to Borrower in
connection with each annual, interim, or special audit of Borrower's financial
statements, including without limitation, the comment letter submitted by such
accountants to management in connection with their annual audit;
(g) as soon possible and in any event within thirty (30) days after the
Borrower or any Restricted Subsidiary knows or has reason to know that any
"Reportable Event" (as defined in Section 4043(b) of ERISA) with respect to any
Plan has occurred (other than such a Reportable Event for which the PBGC has
waived the 30-day notice requirement under Section 4043(a) of ERISA) and such
Reportable Event involves a matter that has had, or is reasonably likely to
have, a Materially Adverse Effect, a statement of a Financial Officer of the
Borrower or such Restricted Subsidiary setting forth details as to such
Reportable Event and the action which the Borrower or such Restricted Subsidiary
proposes to take with respect thereto, together with a copy of the notice of
such Reportable Event given to the PBGC if a copy of such notice is available to
the Borrower or such Restricted Subsidiary;
(h) prompt written notice of the occurrence of any Default or Event of
Default; and
(i) with reasonable promptness, such other information relating to the
Borrower's performance of this Agreement or its financial condition as may
reasonably be requested from time to time by the Agent (at the request of any
Lender).
SECTION 7.8. NOTICES UNDER CERTAIN OTHER INDEBTEDNESS.
Promptly following its receipt thereof, Borrower shall furnish the Agent a copy
of any notice received by it or any of its Restricted Subsidiaries from the
holder(s) of Indebtedness (or from any trustee, agent, attorney, or other party
acting on behalf of such holder(s)) in an amount which, in the aggregate,
exceeds $10,000,000, where such notice states or claims the existence or
occurrence of any default or event of default with respect to such Indebtedness
under the terms of any indenture, loan or credit agreement, debenture, note, or
other document evidencing or governing such Indebtedness.
SECTION 7.9. NOTICE OF LITIGATION.
The Borrower shall notify the Agent of any actions, suits or
proceedings instituted by any Person against it or any Restricted Subsidiary
where the uninsured portion of the money damages sought (which shall include any
deductible amount to be paid by the Borrower or such Restricted Subsidiary) is
in excess of $10,000,000 or which is reasonably likely to have a Materially
Adverse Effect. Said notice is to be given along
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<PAGE> 48
with the quarterly and annual reports required by Section 7.7. hereof, and is to
specify the amount of damages being claimed or other relief being sought, the
nature of the claim, the Person instituting the action, suit or proceeding, and
any other significant features of the claim.
SECTION 7.10. SUBSIDIARY GUARANTEES; PLEDGE AGREEMENT.
(a) Subject to subsection (b) below, the Borrower shall cause all of its
Restricted Subsidiaries not existing as of the Closing Date to execute and
deliver a Joinder Agreement, within thirty (30) days of the creation or
acquisition of any such Restricted Subsidiary by the Borrower or other
Restricted Subsidiary; provided, however, that in the case of any Restricted
Subsidiary which holds no assets and is formed solely to effectuate a Permitted
Acquisition, the thirty (30) day period referenced above shall begin on the
earlier of (i) such Restricted Subsidiary acquiring any assets or (ii) the
consummation of the Permitted Acquisition for which such Restricted Subsidiary
was formed. The delivery of such documents shall be accompanied by such other
documents as the Agent may reasonably request (including without limitation,
certificates of incorporation, articles of incorporation and bylaws, membership
operating agreements, opinion letters and appropriate resolutions of the Board
of Directors of any such Subsidiary Guarantor).
(b) Notwithstanding the foregoing subsection (a), the Borrower shall not be
required to cause any Restricted Subsidiary to deliver a Subsidiary Guarantee
and a counterpart Contribution Agreement if such Restricted Subsidiary is
incorporated under any jurisdiction outside of the United States of America (or
any of its territories); provided, however, that in such event the Borrower or
any Subsidiary who owns such Restricted Subsidiary shall pledge 65% of the
capital stock of such Restricted Subsidiary pursuant to a Pledge Agreement and
shall deliver such documents as the Agent may reasonably request(including
without limitation, certificates of incorporation, articles of incorporation and
bylaws, membership operating agreements, opinion letters and appropriate
resolutions of the Board of Directors of the Borrower or such Restricted
Subsidiary pledging such capital stock).
(c) In the event that the Borrower or any Restricted Subsidiary sells any
Subsidiary Guarantor as permitted by Section 8.4 hereof, or in the event the
Borrower designates any Restricted Subsidiary as an Unrestricted Subsidiary in
accordance with the terms of this Agreement, then such Subsidiary Guarantor
shall be released from all obligations under the Subsidiary Guarantee and
Contribution Agreement which it had previously delivered to the Agent and to the
extent any capital stock of such Restricted Subsidiary that has been pledged
pursuant to a Pledge Agreement, then such capital stock shall be released. Such
release shall occur upon the consummation of the sale or designation of any
Restricted Subsidiary as an Unrestricted Subsidiary, as the case may be, and the
Agent shall execute and deliver any releases or other documents reasonably
requested by the Borrower to effectuate such release.
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<PAGE> 49
ARTICLE 8. NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note shall remain
unpaid:
SECTION 8.1. FINANCIAL REQUIREMENTS.
The Borrower shall not:
(i) Fixed Charges. Suffer or permit the ratio of (a) Consolidated
EBITR to (b) Fixed Charges as of the last day of each fiscal
quarter ending during the periods set forth below as
calculated for a period consisting of the four preceding
fiscal quarters, to be less than the ratio set forth opposite
such period:
<TABLE>
<CAPTION>
-------------------------------------------------
PERIOD RATIO
-------------------------------------------------
<S> <C>
Closing Date through 1.75:1.0
September 30, 2001
-------------------------------------------------
October 1, 2001 through June 2.00:1.0
30, 2002
-------------------------------------------------
July 1, 2002 through the 2.50:1.0
Maturity Date
-------------------------------------------------
</TABLE>
(ii) Total Funded Debt to EBITDA. Permit the ratio of (a) Total
Funded Debt to (b) EBITDA as of the last day of each fiscal
quarter ending during the periods set forth below as
calculated for a period consisting of the four preceding
fiscal quarters, to exceed the ratio set forth opposite such
period:
<TABLE>
<CAPTION>
-------------------------------------------------
PERIOD RATIO
-------------------------------------------------
<S> <C>
Closing Date through 3.75:1.0
September 30, 2001
-------------------------------------------------
October 1, 2001 through 3.50:1.0
September 30, 2002
-------------------------------------------------
October 1, 2002 through the 3.25:1.0
Maturity Date
-------------------------------------------------
</TABLE>
(iii) Consolidated Net Worth. Permit Consolidated Net Worth as of
the last day of each fiscal quarter to be less than an amount
equal to (i) the sum of (A) $358,860,000 plus (B) 50% of
cumulative Consolidated Net Income since March 31, 2000, plus
(C) 50% of cash distributions of earnings of Unrestricted
Subsidiaries made to a Consolidated Company to the extent
previously excluded in the determination of Consolidated Net
Income or Consolidated Net Loss by virtue of clause (i) of the
respective definitions thereof, on a cumulative basis after
March 31, 2000, plus (D) 100% of the Net Proceeds from any
Equity Offering consummated after March 31, 2000, minus (ii)
actual stock repurchases made by the Borrower after March 31,
2000 and permitted by Section 8.13.
SECTION 8.2. LIENS.
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<PAGE> 50
The Borrower will not, and will not permit any Restricted Subsidiary to, create,
assume or suffer to exist any Lien upon any of their respective properties or
assets (hereinafter "Properties") whether now owned or hereafter acquired;
provided, however, that this Section 8.2. shall not apply to the following:
(a) any Lien for taxes not yet due or taxes or assessments or other
governmental charges which are being actively contested in good faith by
appropriate proceedings and for which adequate reserves have been established;
(b) any Liens, pledges or deposits in connection with worker's compensation
or social security, assessments or other similar charges or deposits incidental
to the conduct of the business of the Borrower or any Restricted Subsidiary or
the ownership of any of their assets or properties which were not incurred in
connection with the borrowing of money or the obtaining of advances or credit
and which do not in the aggregate Materially detract from the value of their
Properties or Materially impair the use thereof in the operation of their
businesses;
(c) statutory Liens of carriers, warehousemen, mechanics, materialmen and
other Liens imposed by law created in the ordinary course of business for
amounts not yet due or which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been established;
(d) pledges or deposits for the purpose of securing a stay or discharge in
the course of any legal proceeding provided that the aggregate amount of such
pledges or deposits outstanding at any one time does not exceed five percent
(5%) of Consolidated Net Worth, unless such excess amount is otherwise permitted
pursuant to this Section 8.2;
(e) Liens consisting of encumbrances in the nature of zoning restrictions,
easements, rights and restrictions of record on the use of real property on the
date of the acquisition thereof and statutory Liens of landlords and lessors
which in each case do not Materially detract from the value of such property or
impair the use thereof;
(f) any Lien in favor of the United States of America or any department or
agency thereof, or in favor of any state government or political subdivision
thereof, or in favor of a prime contractor under a government contract of the
United States, or of any state government or any political subdivision thereof,
and, in each case, resulting from acceptance of partial, progress, advance or
other payments in the ordinary course of business under government contracts of
the United States, or of any state government or any political subdivision
thereof, or subcontracts thereunder and which do not materially impair the use
of such property as currently being utilized by the Borrower or its Restricted
Subsidiary;
(g) any Lien existing on the date hereof;
(h) any Lien securing Funded Debt of a Restricted Subsidiary to the
Borrower;
(i) any Lien securing any Capital Lease Obligations and any Purchase Money
Indebtedness (including any such Liens existing on any properties of any Person
at the time of its Acquisition by the Borrower or any Restricted Subsidiary)
provided in the case of any Purchase Money Indebtedness such Lien (i) is placed
upon any asset at the time of its acquisition (or within 60 days thereafter) and
(ii) does not encumber any properties other than the property acquired;
(j) any Lien evidencing the transfer of any receivables pursuant to any
Permitted Securitization Transaction;
(k) any Lien renewing, extending, refinancing or refunding any Lien
permitted by clauses (c), (d), (e), (f), (g), (h) or (i) above; provided,
however, that the principal amount secured is not increased, and the Lien is not
extended to other assets or properties; and
(l) any Lien other than those permitted by clauses (a) through (k) above;
provided, however, that the aggregate amount of all outstanding obligations
secured by Liens permitted by this clause (l) shall not at any time exceed ten
percent (10%) of the Consolidated Net Worth, and when combined (without
duplication) with outstanding Funded Debt of the Restricted Subsidiaries, such
total shall not exceed 20% of Total Capitalization.
SECTION 8.3. LIMITATIONS ON FUNDED DEBT OF RESTRICTED SUBSIDIARIES.
The Borrower will not permit any Restricted Subsidiary to incur or suffer to
exist Funded Debt other than:
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<PAGE> 51
(a) Funded Debt under this Agreement;
(b) Funded Debt (i) resulting from the transfer of any receivable in
connection with a Permitted Securitization Transaction so long as such Funded
Debt is non-recourse as to a Restricted Subsidiary (other than as to the
transferred receivables) and (ii) consisting of Standard Securitization
Undertakings in connection with any Permitted Securitization Transaction;
(c) Funded Debt of the Restricted Subsidiaries existing on the date of this
Agreement and any renewal, extension, refunding, or refinancing thereof so long
as such refinancing, renewal, refunding or refinancing does not increase the
principal amount outstanding thereunder; and
(d) additional unsecured or secured (to the extent permitted by Section
8.2. above) Funded Debt which, when aggregated (without duplication) with the
outstanding Funded Debt of all the Restricted Subsidiaries, does not exceed 20%
of the Total Capitalization at the end of each fiscal quarter.
SECTION 8.4. MERGER AND SALE OF ASSETS.
The Borrower will not, without the prior written consent of the Required
Lenders, merge or consolidate with any other corporation or sell, lease or
transfer or otherwise dispose of all or, during any twelve-month period, any
part of its assets, to any person or entity other than in the ordinary course of
business, nor will the Borrower permit any Restricted Subsidiary to take any of
the above actions; provided that notwithstanding any of the foregoing
limitations, if no Event of Default shall then exist or immediately thereafter
will begin to exist, the Borrower and the Restricted Subsidiaries may take the
following actions:
(a) Any Restricted Subsidiary may merge with (i) the Borrower (provided
that the Borrower shall be the continuing or surviving corporation), (ii) any
one or more other Subsidiaries provided that either the continuing or surviving
corporation shall be a Restricted Subsidiary or after giving effect to any
merger pursuant to this Section 8.4., the Borrower and/or one or more Restricted
Subsidiaries shall own not less than the same percentage of the outstanding
Voting Stock of the continuing or surviving corporation as the Borrower and/or
one or more Restricted Subsidiaries owned of the merged Restricted Subsidiary
immediately prior to such merger or (iii) any other Person as long as the
Restricted Subsidiary is the surviving corporation or in the event the
Restricted Subsidiary is not the surviving corporation, the surviving Person
becomes a Restricted Subsidiary upon consummation of such merger and assumes all
of the obligations of such Restricted Subsidiary under the Credit Documents upon
consummation of such merger;
(b) Any Restricted Subsidiary may sell, lease, transfer or otherwise
dispose of any of its assets to (i) the Borrower, (ii) any Restricted Subsidiary
or (iii) any Subsidiary of which the Borrower and/or one or more Restricted
Subsidiaries shall own not less than the same percentage of Voting Stock as the
Borrower and/or one or more Restricted Subsidiaries then own of the Restricted
Subsidiary making such sale, lease, transfer or other disposition;
(c) The Borrower may sell, lease, transfer or otherwise dispose of an asset
to any Subsidiary, provided (i) that upon completion of a transaction described
in this Section 8.4(c), there shall exist no Default or Event of Default and
(ii) that upon completion of a transaction described in this Section 8.4(c),
the Subsidiary to which the Borrower's assets are sold, leased, transferred or
otherwise disposed shall be a Restricted Subsidiary;
(d) The Borrower may merge with any other corporation, provided that the
Borrower shall be the surviving corporation and shall be able to incur at least
$1.00 of Funded Debt under Section 8.1 of this Agreement;
(e) The Borrower and its Restricted Subsidiaries may transfer assets to a
Permitted Joint Venture in an amount not to exceed the Joint Venture Investment;
(f) The Borrower and its Restricted Subsidiaries may dispose of assets in
the ordinary course of business which are obsolete or worn out;
(g) The Borrower and its Restricted Subsidiaries may transfer assets to one
or more Permitted Securitization Subsidiaries so long as such transfer is made
to consummate a Permitted Securitization Transaction; and
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<PAGE> 52
(h) in addition to amounts covered by clauses (a) through (g) above, the
Borrower and its Restricted Subsidiaries may sell, lease or transfer assets with
an aggregate fair market value, during any fiscal year, not to exceed 25% of the
Borrower's Consolidated Net Worth as of the end of the immediately preceding
fiscal year.
SECTION 8.5. TRANSACTIONS WITH AFFILIATES.
Other than in connection with a Permitted Securitization Transaction, the
Borrower will not, and will not permit any Restricted Subsidiary to, enter into
or be a party to any transaction or arrangement with any Affiliate (including
without limitation, the purchase from, sale to or exchange of property with, or
the rendering of any service by or for, any Affiliates), except in the ordinary
course of and pursuant to the reasonable requirements of the Borrower's or such
Restricted Subsidiary's business and upon fair and reasonable terms no less
favorable to the Borrower or such Subsidiary than such party would obtain in a
comparable arm's-length transaction with a Person other than an Affiliate.
SECTION 8.6. NATURE OF BUSINESS.
Neither the Borrower nor any Restricted Subsidiary will engage in any
business if, as a result, the primary nature of the business, taken on a
consolidated basis, which would then be engaged in by the Borrower and its
Restricted Subsidiaries would be fundamentally changed from the general nature
of the business engaged in by the Borrower and its Restricted Subsidiaries on
the date of this Agreement, which the parties agree is the manufacture and sale
of paperboard, paperboard and plastic products, other types of packaging
material and similar or complementary products and services connected or
incidental thereto, including, without limitation, any e-commerce initiatives
and brokerage operations.
SECTION 8.7. REGULATIONS T, U AND X.
The Borrower will not nor will it permit any Subsidiary to take any
action that would result in any non-compliance of the Advances made hereunder
with Regulations T, U and X of the Board of Governors of the Federal Reserve
System.
SECTION 8.8. ERISA COMPLIANCE.
Neither the Borrower nor any Subsidiary will incur any Material "accumulated
funding deficiency" within the meaning of Section 302(a)(2) of ERISA, or any
Material liability under Section 4062 of ERISA to the Pension Benefit Guaranty
Corporation ("PBGC") established thereunder in connection with any Plan.
SECTION 8.9. LIMITATIONS ON SUBSIDIARIES WHICH ARE NOT RESTRICTED
SUBSIDIARIES.
The Borrower will not allow any Unrestricted Subsidiary:
(a) to own any capital stock or right or option to acquire capital stock of
the Borrower or any Restricted Subsidiary, or own or hold any Lien on any
property of the Borrower or any of its Restricted Subsidiaries other than in
connection with any Permitted Securitization Transaction; and
(b) to create, incur, issue, assume, guarantee or otherwise become directly
or indirectly liable with respect to, or suffer to exist any Indebtedness
pursuant to which the lender has recourse to the Borrower or any of its
Restricted Subsidiaries or to any of the assets of the Borrower or any of its
Restricted Subsidiaries ("Recourse Debt") other than Standard Securitization
Undertakings and Recourse Debt which, when aggregated (without duplication) with
the outstanding Recourse Debt of all the Unrestricted Subsidiaries, does not
exceed 15% of the Total Capitalization at the end of each fiscal quarter.
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SECTION 8.10. LIMITATION ON ACQUISITIONS; JOINT VENTURES.
Neither the Borrower nor any Restricted Subsidiary shall invest or make any
capital contribution in any Joint Venture other than Permitted Joint Ventures or
consummate any Acquisition other than Permitted Acquisitions.
SECTION 8.11. LIMITATION ON SECURITIZATION UNDERTAKINGS OF BORROWER AND
RESTRICTED SUBSIDIARIES.
Neither the Borrower nor any Restricted Subsidiary shall incur or become
obligated in respect of any Indebtedness or other obligation in connection with
any Permitted Securitization Transaction other than Funded Debt (i) resulting
from the transfer of any receivable in connection with a Permitted
Securitization Transaction so long as such Funded Debt is non-recourse as to the
Borrower and any Restricted Subsidiary (other than as to the transferred
receivables) and (ii) consisting of Standard Securitization Undertakings.
SECTION 8.12. RESTRICTIVE AGREEMENTS.
Neither the Borrower nor any Restricted Subsidiary shall, directly or
indirectly, enter into, incur or permit to exist any agreement that prohibits,
restricts or imposes any condition upon (a) the ability of the Borrower or any
Restricted Subsidiary to create, incur or permit any Lien upon any of its assets
or properties, whether now owned or hereafter acquired, or (b) the ability of
any Restricted Subsidiary to pay dividends or other distributions with respect
to its common stock, to make or repay loans or advances to the Borrower or any
other Restricted Subsidiary, to Guaranty Indebtedness of the Borrower or any
other Restricted Subsidiary or to transfer any of its property or assets to the
Borrower or any Restricted Subsidiary; provided, that (i) the foregoing shall
not apply to restrictions or conditions imposed by law or by this Agreement or
any other Credit Document, (ii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Restricted Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Restricted Subsidiary that is sold and such sale is
permitted hereunder, (iii) clause (a) shall not apply to restrictions or
conditions imposed by any agreement relating to Purchase Money Indebtedness
permitted by this Agreement if such restrictions and conditions apply only to
the property or assets securing such Indebtedness and (iv) clause (a) shall not
apply to customary provisions in leases restricting the assignment thereof.
SECTION 8.13. RESTRICTED PAYMENTS.
The Borrower will not, and will not permit its Restricted Subsidiaries to,
declare or make, or agree to pay or make, directly or indirectly, any dividend
on any class of its stock, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption,
retirement, defeasance or other acquisition of, any shares of common stock or
any options, warrants, or other rights to purchase such common stock , whether
now or hereafter outstanding (each, a "Restricted Payment"), except for (a)
dividends payable by the Borrower solely in shares of any class of its common
stock, (b) Restricted Payments made by any Subsidiary to the Borrower or to
another Restricted Subsidiary and (c) cash dividends paid on, and cash
repurchases of, the common stock of the Borrower; provided, that (i) no Default
or Event of Default has occurred or would occur as a result of paying such
dividend or repurchases, (ii) at the time of payment of such dividend and after
giving effect to such payment, the
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Borrower and any Restricted Subsidiary could incur an additional $1.00 of Funded
Debt under Section 8.1 and 8.3, respectively, of this Agreement and (d)
repurchases of Borrower's common stock in an aggregate amount not to exceed
$100,000,000 through the Maturity Date so long as (i) no Default or Event of
Default has occurred or would occur as a result of such payment and (ii) at the
time of such payment and after giving effect to such payment, the Borrower and
any Restricted Subsidiary could incur an additional $1.00 of Funded Debt under
Section 8.1 and 8.3, respectively, of this Agreement, and (iii) at the time of
such payment, the Borrower has Investment Grade Status from at least one Rating
Agency.
SECTION 8.14. ADVERSE ARRANGEMENTS.
The Borrower will not, and will not permit its Restricted Subsidiaries to, enter
into any arrangement, contractual or otherwise, that would reasonably be
expected to have a Materially Adverse Effect.
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ARTICLE 9. EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the following specified
events (each an "Event of Default"):
SECTION 9.1. PAYMENTS.
Borrower shall fail to make promptly when due (including, without limitation, by
mandatory prepayment) any principal payment with respect to the Loans, or
Borrower shall fail to make any payment of interest, fee or other amount payable
hereunder within three (3) Business Days of the due date thereof;
SECTION 9.2. COVENANTS WITHOUT NOTICE.
Borrower shall fail to observe or perform any covenant or agreement contained in
Sections 7.7.(a), (b), (c) and (d), Section 7.8, Section 7.9, Section 7.10 or
Article 8.;
SECTION 9.3. OTHER COVENANTS.
Borrower shall fail to observe or perform any covenant or agreement contained in
this Agreement, other than those referred to in Sections 9.1. and 9.2., and such
failure shall remain unremedied for 30 days after the earlier of (i) an
Executive Officer of the Borrower obtaining knowledge thereof, or (ii) written
notice thereof shall have been given to Borrower by Agent or any Lender;
SECTION 9.4. REPRESENTATIONS.
Any representation or warranty made or deemed to be made by Borrower or any
Restricted Subsidiary or by any of its officers under this Agreement or any
other Credit Document (including the Schedules attached thereto), or any
certificate or other document submitted to the Agent or the Lenders by any such
Person pursuant to the terms of this Agreement or any other Credit Document,
shall be incorrect in any material respect when made or deemed to be made or
submitted;
SECTION 9.5. NON-PAYMENTS OF OTHER INDEBTEDNESS.
The Borrower or any of its Restricted Subsidiaries shall fail to make when due
(whether at stated maturity, by acceleration, on demand or otherwise, and after
giving effect to any applicable grace period) any payment of principal of or
interest on any Indebtedness (other than the Obligations) exceeding $10,000,000
individually or in the aggregate;
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SECTION 9.6. DEFAULTS UNDER OTHER AGREEMENTS.
The Borrower or any of its Restricted Subsidiaries shall fail to observe or
perform within any applicable grace period any covenants or agreements contained
in any agreements or instruments relating to any of its Indebtedness exceeding
$10,000,000 individually or in the aggregate, or any other event shall occur if
the effect of such failure or other event is to accelerate, or to permit the
holder of such Indebtedness or any other Person to accelerate, the maturity of
such Indebtedness; or any such Indebtedness shall be required to be prepaid
(other than by a regularly scheduled required prepayment) in whole or in part
prior to its stated maturity;
SECTION 9.7. BANKRUPTCY.
Borrower or any Restricted Subsidiary shall commence a voluntary case concerning
itself under the Bankruptcy Code or applicable foreign bankruptcy laws; or an
involuntary case for bankruptcy is commenced against the Borrower or any of its
Restricted Subsidiaries and the petition is not controverted within 30 days, or
is not dismissed within 60 days, after commencement of the case; or a custodian
(as defined in the Bankruptcy Code) or similar official under applicable foreign
bankruptcy laws is appointed for, or takes charge of, all or any substantial
part of the property of the Borrower or any of its Restricted Subsidiaries; or
the Borrower or any of its Restricted Subsidiaries commences proceedings of its
own bankruptcy or to be granted a suspension of payments or any other proceeding
under any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction,
whether now or hereafter in effect, relating to the Borrower or any of its
Restricted Subsidiaries or there is commenced against the Borrower or any of its
Restricted Subsidiaries any such proceeding which remains undismissed for a
period of 60 days; or the Borrower or any of its Restricted Subsidiaries is
adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or the Borrower or any of its
Restricted Subsidiaries suffers any appointment of any custodian or the like for
it or any substantial part of its property to continue undischarged or unstayed
for a period of 60 days; or the Borrower or any of its Restricted Subsidiaries
makes a general assignment for the benefit of creditors; or the Borrower or any
of its Restricted Subsidiaries shall fail to pay, or shall state that it is
unable to pay, or shall be unable to pay, its debts generally as they become
due; or the Borrower or any of its Restricted Subsidiaries shall call a meeting
of its creditors with a view to arranging a composition or adjustment of its
debts; or the Borrower or any of its Restricted Subsidiaries shall by any act or
failure to act indicate its consent to, approval of or acquiescence in any of
the foregoing; or any corporate action is taken by the Borrower or any of its
Restricted Subsidiaries for the purpose of effecting any of the foregoing;
SECTION 9.8. ERISA.
A Plan of the Borrower or any Restricted Subsidiary or a Plan subject to Title
IV of ERISA of any of its ERISA Affiliates
(i) shall fail to be funded in accordance with the minimum funding
standard required by applicable law, the terms of such Plan,
Section 412 of the Tax Code or Section 302 of ERISA for any
plan year or a waiver of such standard is sought or granted
with respect to such Plan under applicable law, the terms of
such Plan or Section 412 of the Tax Code or Section 303 of
ERISA; or
(ii) is being, or has been, terminated or the subject of
termination proceedings under applicable law or the terms of
such Plan; or
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(iii) shall require the Borrower or any Restricted Subsidiary to
provide security under applicable law, the terms of such Plan,
Section 401 or 412 of the Tax Code or Section 306 or 307 of
ERISA; or
(iv) results in a liability to the Borrower or any Restricted
Subsidiary under applicable law, the terms of such Plan, or
Title IV of ERISA;
and there shall result from any such failure, waiver, termination or other event
a liability to the PBGC or a Plan that would have a Materially Adverse Effect.
SECTION 9.9. MONEY JUDGMENT.
Judgments or orders for the payment of money in excess of $10,000,000
individually or in the aggregate or otherwise having a Materially Adverse Effect
shall be rendered against Borrower or any Restricted Subsidiary and such
judgment or order shall continue unsatisfied (in the case of a money judgment)
and in effect for a period of 30 days during which execution shall not be
effectively stayed or deferred (whether by action of a court, by agreement or
otherwise);
SECTION 9.10. DEFAULT UNDER OTHER CREDIT DOCUMENTS.
There shall exist or occur any "Event of Default" as provided under the terms of
any Credit Document, or any Credit Document ceases to be in full force and
effect or the validity or enforceability thereof is disaffirmed by or on behalf
of Borrower or any Restricted Subsidiary, or at any time it is or becomes
unlawful for Borrower or any Restricted Subsidiary to perform or comply with its
obligations under any Credit Document, or the obligations of Borrower or any
Restricted Subsidiary under any Credit Document are not or cease to be legal,
valid and binding on Borrower or any Restricted Subsidiary;
SECTION 9.11. CHANGE IN CONTROL.
A Change in Control shall occur.
SECTION 9.12. SECURITIZATION EVENTS.
There shall occur any breach of any covenant by the Borrower, any Restricted
Subsidiary or any Permitted Securitization Subsidiary contained in any agreement
relating to Permitted Securitization Transaction causing or permitting the
acceleration of the obligations thereunder or requiring the prepayment of such
obligations or termination of such securitization program prior to its stated
maturity or term; provided, however, such breach shall not constitute an Event
of Default unless the Borrower or any Restricted Subsidiary shall have any
Material liability or payment obligation under such Permitted Securitization
Transaction.
SECTION 9.13. GOVERNMENTAL LICENSES; PERMITS.
There shall occur any loss, termination, cancellation or other material
impairment of any governmental license, certificate, or permit by the Borrower
or any Restricted Subsidiary which is reasonably likely to have a Materially
Adverse Effect. then, and in any such event, and at any time thereafter if any
Event of Default shall then be continuing, the Agent may, and upon the written
request of the Required Lenders, shall, by written notice to Borrower, take any
or all of the following actions, without prejudice to the rights of the Agent,
any Lender or the holder of any Note to enforce its claims against Borrower or
any Restricted Subsidiary: (i) declare all Commitments terminated, whereupon the
Commitments of each Lender shall terminate immediately and any Facility Fee
shall forthwith become due and payable without any other notice of any kind;
(ii) declare the principal of and any accrued interest on the Loans, and all
other Obligations owing hereunder to be,
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whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; provided, that, if an Event of Default specified in Section 9.7.
shall occur, the result which would occur upon the giving of written notice by
the Agent to the Borrower or any of its Restricted Subsidiaries, as specified in
clauses (i) and (ii) above, shall occur automatically without the giving of any
such notice, and (iii) may exercise any other rights or remedies available under
the Credit Documents, at law or in equity.
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ARTICLE 10. THE AGENT
SECTION 10.1. APPOINTMENT OF AGENT.
Each Lender hereby designates SunTrust as Agent to administer all matters
concerning the Loans and to act as herein specified. Each Lender hereby
irrevocably authorizes, and each holder of any Note by the acceptance of a Note
shall be deemed irrevocably to authorize, the Agent to take such actions on its
behalf under the provisions of this Agreement, the other Credit Documents, and
all other instruments and agreements referred to herein or therein, and to
exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The Agent
may perform any of its duties hereunder by or through its agents or employees.
SECTION 10.2. AUTHORIZATION OF AGENT WITH RESPECT TO THE SECURITY DOCUMENTS.
(a) Each Lender hereby authorizes the Agent to enter into any Security
Documents, and to take all action contemplated thereby. All rights and remedies
under any Security Documents may be exercised by the Agent for the benefit of
the Agent and the Lenders and the other beneficiaries thereof upon the terms
thereof. The Lenders further agree that the Agent may assign its rights and
obligations under any of the Security Documents to any affiliate of the Agent or
to any trustee, if necessary or appropriate under applicable law, which assignee
in each such case shall (subject to compliance with any requirements of
applicable law governing the assignment of such Security Documents) be entitled
to all the rights of the Agent under and with respect to any applicable Security
Document. (b) In each circumstance where, under any provision of any Security
Document, the Agent shall have the right to grant or withhold any consent,
exercise any remedy, make any determination or direct any action by the Agent
under such Security Document, the Agent shall act in respect of such consent,
exercise of remedies, determination or action, as the case may be, with the
consent of and at the direction of the Required Lenders.
SECTION 10.3. NATURE OF DUTIES OF AGENT.
The Agent shall have no duties or responsibilities except those expressly set
forth in this Agreement and the other Credit Documents. None of the Agent nor
any of its respective officers, directors, employees or agents shall be liable
for any action taken or omitted by it as such hereunder or in connection
herewith, unless caused by its or their gross negligence or willful misconduct.
The duties of the Agent shall be ministerial and administrative in nature; the
Agent shall not have by reason of this Agreement a fiduciary relationship in
respect of any Lender; and nothing in this Agreement, express or implied, is
intended to or shall be so construed as to impose upon the Agent any obligations
in respect of this Agreement or the other Credit Documents except as expressly
set forth herein.
SECTION 10.4. LACK OF RELIANCE ON THE AGENT.
(a) Independently and without reliance upon the Agent, each Lender, to the
extent it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the Borrower
and its Restricted Subsidiaries in connection with the taking or not taking of
any action in connection herewith, and (ii) its own appraisal of the
creditworthiness of the Borrower and its Restricted Subsidiaries, and, except as
expressly provided in this Agreement, the Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any Lender
with any credit or other information with respect thereto, whether coming into
its possession before the making of the Loans or at any time or times
thereafter.
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(b) The Agent shall not be responsible to any Lender for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability,
collectibility, priority or sufficiency of this Agreement, the Notes, or any
other documents contemplated hereby or thereby, or the financial condition of
the Borrower and its Restricted Subsidiaries, or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement, the Notes, or the other documents contemplated
hereby or thereby, or the financial condition of the Borrower and its Restricted
Subsidiaries, or the existence or possible existence of any Default or Event of
Default.
SECTION 10.5. CERTAIN RIGHTS OF THE AGENT.
If the Agent shall request instructions from the Required Lenders with respect
to any action or actions (including the failure to act) in connection with this
Agreement, the Agent shall be entitled to refrain from such act or taking such
act, unless and until the Agent shall have received instructions from the
Required Lenders; and the Agent shall not incur liability in any Person by
reason of so refraining. Without limiting the foregoing, no Lender shall have
any right of action whatsoever against the Agent as a result of the Agent acting
or refraining from acting hereunder in accordance with the instructions of the
Required Lenders.
SECTION 10.6. RELIANCE BY AGENT.
The Agent shall be entitled to rely, and shall be fully protected in relying,
upon any note, writing, resolution, notice, statement, certificate, teletype or
telecopier message, cable gram, radiogram, order or other documentary,
teletransmission or telephone message believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person. The Agent may
consult with legal counsel (including counsel for the Borrower or any of its
Restricted Subsidiaries), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
SECTION 10.7. INDEMNIFICATION OF AGENT.
To the extent the Agent is not reimbursed and indemnified by the Borrower and
its Restricted Subsidiaries, each Lender will reimburse and indemnify the Agent,
ratably according to the respective amounts of the Loans outstanding under all
Facilities (or if no amounts are outstanding, ratably in accordance with the
Revolving Credit Commitments), in either case, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including reasonable counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agent in performing its duties hereunder, in any way
relating to or arising out of this Agreement or the other Credit Documents;
provided that no Lender shall be liable to the Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct. In the event the Agent receives any payments under this
Section 10.7 (an "Indemnification Payment") and subsequently receives
indefeasible payment from the Borrower or its Restricted Subsidiaries on account
of the indemnification claim giving rise to such Indemnification Payment, the
Agent shall promptly return that portion of the Indemnification Payment to the
applicable Lender for which it received indefeasible payment from the Borrower
or any Restricted Subsidiary.
SECTION 10.8. THE AGENT IN ITS INDIVIDUAL CAPACITY.
With respect to its obligation to lend under this Agreement, the Loans made by
it and the Notes issued to it, the Agent shall have the same rights and powers
hereunder as any other Lender or holder of a Note and may exercise the same as
though it were not performing the duties specified herein; and the terms
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"Lenders", "Required Lenders", "holders of Notes", or any similar terms shall,
unless the context clearly otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust, financial advisory or other
business with the Borrower and its Restricted Subsidiaries or any Affiliate of
the Borrower and its Restricted Subsidiaries as if it were not performing the
duties specified herein, and may accept fees and other consideration from the
Borrower and its Restricted Subsidiaries for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.
SECTION 10.9. HOLDERS OF NOTES.
The Agent may deem and treat the payee of any Note as the owner thereof for all
purposes hereof unless and until a written notice of the assignment or transfer
thereof shall have been filed with the Agent. Any request, authority or consent
of any Person who, at the time of making such request or giving such authority
or consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
SECTION 10.10. SUCCESSOR AGENT.
(a) The Agent may resign at any time by giving written notice thereof to
the Lenders and Borrower and may be removed at any time with or without cause by
the Required Lenders; provided, however, the Agent may not resign or be removed
until a successor Agent has been appointed and shall have accepted such
appointment. Upon any such resignation or removal, the Required Lenders shall
have the right to appoint a successor Agent subject to Borrower's prior written
approval (not to be unreasonably withheld or delayed). If no successor Agent
shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent subject
to Borrower's prior written approval (not to be unreasonably withheld or
delayed), which shall be a bank which maintains an office in the United States,
or a commercial bank organized under the laws of the United States of America or
any State thereof, or any Affiliate of such bank, having a combined capital and
surplus of at least $100,000,000.
In the event that the Agent is no longer a Lender hereunder, the Agent shall
promptly resign as Agent.
(b) Upon the acceptance of any appointment as the Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article 10. shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was an Agent under this
Agreement.
SECTION 10.11 NO DUTIES IMPOSED UPON SYNDICATION AGENT OR DOCUMENTATION
AGENT.
None of the Persons identified on the cover page to this Agreement, the
signature pages to this Agreement or otherwise in this Agreement as a
"Syndication Agent" or "Documentation Agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than,
if such Person is a Lender, those applicable to all Lenders as such. Without
limiting the foregoing, none of the Persons identified on the cover page to this
Agreement, the signature pages to this Agreement or otherwise in this Agreements
as a "Syndication Agent" or "Documentation Agent" shall have or be deemed to
have any fiduciary duty to or fiduciary relationship with any Lender. In
addition to the agreements set forth in Section 10.11, each of the Lenders
acknowledges that it has not relied, and will not rely, on any of the Persons so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
SECTION 10.12 NOTICES TO BE DELIVERED BY AGENT.
The Agent shall deliver to each Lender, promptly upon receipt thereof by the
Agent, copies of each of the notices and other documents delivered to the Agent
pursuant to Sections 7.8 and 7.9. The Agent will also furnish to any Lender,
upon the written request of such Lender, a copy of any certificate or notice
furnished to the Agent by the Borrower pursuant to this Agreement or any other
Credit Document not already delivered to such Lender pursuant to the terms of
this Agreement or any such other Credit Document.
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ARTICLE 11. MISCELLANEOUS
SECTION 11.1. NOTICES.
All notices, requests and other communications to any party hereunder shall be
in writing (including bank wire, telecopy or similar teletransmission or
writing) and shall be given to such party at its address or applicable
teletransmission number set forth on the signature pages hereof, or such other
address or applicable teletransmission number as such party may hereafter
specify by notice to the Agent and Borrower. Each such notice, request or other
communication shall be effective (i) if given by mail, three Business Days after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, (ii) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified in this Section and the appropriate
confirmation is received, or (iii) if given by any other means (including,
without limitation, by air courier), when delivered or received at the address
specified in this Section; provided that notices to the Agent shall not be
effective until received.
SECTION 11.2. AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement or the other Credit
Documents, nor consent to any departure by the Borrower or any of its Restricted
Subsidiaries therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders do any of the following: (i) waive any of
the conditions specified in Section 5.1. or 5.2., (ii) increase the Commitments
or other contractual obligations to Borrower under this Agreement, (iii) reduce
the principal of, or interest on, the Notes or any fees hereunder, (iv) postpone
any date fixed for the payment in respect of principal of, or interest on, the
Notes (other than in connection with the extension of the Maturity Date in
accordance with Section 2.5 hereof) or any fees hereunder, (v) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the number or identity of Lenders which shall be required for the
Lenders or any of them to take any action hereunder, (vi) modify the definition
of "Required Lenders," (vii) release the Borrower from any Credit Document or
reduce any obligation owed under or release any Subsidiary Guarantee, (except as
required under Section 7.10(d)), (viii) release any capital stock pledged under
any Pledge Agreement (except as required under Section 7.10(d)), (ix) modify
this Section 11.2 or Section 2.5 or (x) agree to subordinate the Obligations to
any other Person. Notwithstanding the foregoing, no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Lenders
required hereinabove to take such action, affect the rights or duties of the
Agent under this Agreement or under any other Credit Document.
SECTION 11.3. NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Agent, any Lender or any holder of a Note
in exercising any right or remedy hereunder or under any other Credit Document,
and no course of dealing between the Borrower or any of its Restricted
Subsidiaries and the Agent, any Lender or the holder of any Note shall operate
as a waiver thereof, nor shall any single or partial exercise of any right or
remedy hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right or remedy hereunder
or thereunder. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which the Agent, any Lender or the
holder of any Note would otherwise have. No notice to or demand on the Borrower
or any of its Restricted Subsidiaries not required hereunder or under any other
Credit Document in any case shall entitle the Borrower or any of its Restricted
Subsidiaries to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agent, the Lenders or
the holder of any Note to any other or further action in any circumstances
without notice or demand.
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SECTION 11.4. PAYMENT OF EXPENSES; INDEMNIFICATION, ETC.
Borrower shall:
(i) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and
expenses of the Agent in connection with the preparation,
execution and delivery of, preservation of rights under,
enforcement of, and, after a Default or Event of Default or,
upon the request of the Borrower, refinancing, renegotiation
or restructuring of, this Agreement and the other Credit
Documents and the documents and instruments referred to
therein, and any amendment, waiver or consent relating thereto
(including, without limitation, the reasonable fees actually
incurred and disbursements of counsel for the Agent), and in
the case of enforcement of this Agreement or any Credit
Document after an Event of Default, all such reasonable,
out-of-pocket costs and expenses (including, without
limitation, the reasonable fees actually incurred and
reasonable disbursements and charges of counsel), for any of
the Lenders;
(ii) subject, in the case of certain Taxes, to the applicable
provisions of Section 4.8.(b), pay and hold each of the
Lenders harmless from and against any and all present and
future stamp, documentary, and other similar Taxes with
respect to this Agreement, the Notes and any other Credit
Documents, any collateral described therein, or any payments
due thereunder, and save each Lender harmless from and against
any and all liabilities with respect to or resulting from any
delay or omission to pay such Taxes; and
(iii) indemnify and defend the Agent and each Lender, and their
respective officers, directors, employees, representatives and
agents from, and hold each of them harmless against, any and
all costs, losses, liabilities, penalties, fines, claims,
damages or expenses incurred by any of them (whether or not
any of them is designated a party thereto) (an "Indemnitee")
arising out of or by reason of any claim, investigation,
litigation or other proceeding arising out of or in any way
connected with any Credit Document or the Loans or related to
any actual or proposed use of the proceeds of any of the Loans
or the Borrower or any of its Restricted Subsidiaries entering
into and performing of the Agreement, the Notes, or the other
Credit Documents and regardless of whether it is based in
contract, tort or otherwise, including, without limitation,
the reasonable fees actually incurred and disbursements of
counsel incurred in connection with any such investigation,
litigation or other proceeding; provided, however, Borrower
shall not be obligated to indemnify any Indemnitee for any of
the foregoing arising out of such Indemnitee's gross
negligence or willful misconduct;
(iv) without limiting the indemnities set forth in subsection (iii)
above, indemnify each Indemnitee for any and all expenses and
costs (including without limitation, remedial, removal,
response, abatement, cleanup, investigative, closure and
monitoring costs), losses, claims (including claims for
contribution or indemnity and including the cost of
investigating or defending any claim and whether or not such
claim is ultimately defeated, and whether such claim arose
before, during or after the Borrower or any of its Restricted
Subsidiaries' ownership, operation, possession or control of
its business, property or facilities or before, on or after
the date hereof, and including also any amounts paid
incidental to any compromise or settlement by the Indemnitee
or Indemnitees to the holders of any such claim), lawsuits,
liabilities, obligations, actions, judgments, suits,
disbursements, encumbrances, liens, damages (including without
limitation damages for contamination o destruction of natural
resources),
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penalties and fines of any kind or nature whatsoever
(including without limitation in all cases the reasonable fees
actually incurred, other charges and disbursements of counsel
in connection therewith) incurred, suffered or sustained by
that Indemnitee based upon, arising under or relating to
Environmental Laws based on, arising out of or relating to in
whole or in part, the existence or exercise of any rights or
remedies by any Indemnitee under this Agreement, any other
Credit Document or any related documents.
If and to the extent that the obligations of Borrower under this Section 11.4.
are unenforceable for any reason, Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
SECTION 11.5. RIGHT OF SETOFF.
In addition to and not in limitation of all rights of offset that any Lender or
other holder of a Note may have under applicable law, each Lender or other
holder of a Note shall, upon the occurrence and during the continuation of any
Event of Default and whether or not such Lender or such holder has made any
demand or the Borrower or any of its Restricted Subsidiaries' obligations have
matured, have the right to appropriate and apply to the payment of the Borrower
or any of its Restricted Subsidiaries' obligations hereunder and under the other
Credit Documents, all deposits of the Borrower or any of its Restricted
Subsidiaries (general or special, time or demand, provisional or final) then or
thereafter held by and other indebtedness or property then or thereafter owing
by such Lender or other holder to the Borrower or any of its Restricted
Subsidiaries, whether or not related to this Agreement or any transaction
hereunder.
SECTION 11.6. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS.
(a) This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto,
provided that Borrower may not assign or transfer any of its interest hereunder
without the prior written consent of the Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the account
of, any of its branch offices or the office of an Affiliate of such Lender.
(c) Each Lender may assign all or a portion of its interests, rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it and the Notes held by it) to any financial
institution; provided, however, that (i) the Agent and, except during the
continuance of a Default or Event of Default, the Borrower must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld or delayed) unless such assignment is to an Affiliate of the assigning
Lender or to another Lender or an Affiliate of another Lender; (ii) unless such
assignment is to another Lender, the amount of the Commitments of the assigning
Lender subject to each assignment (determined as of the date the assignment and
acceptance with respect to such assignment is delivered to the Agent) shall not
be less than the lesser of (z) an amount equal to (y) $2,500,000 or greater
integral multiplies thereof or the (z) entire Commitment of the assigning
Lender, and (iii) the parties to each such assignment shall execute and deliver
to the Agent an Assignment and Acceptance, together with the Note or Notes
subject to such assignment and, unless such assignment is to an Affiliate of
such Lender, a processing and recordation fee of $1,000. Borrower shall not be
responsible for such processing and recordation fee or any costs or expenses
incurred by any Lender or the Agent in connection with such assignment. From and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the execution
thereof, the assignee thereunder shall be a party hereto and to the extent of
the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement. Within five (5) Business Days
after receipt of the notice and the Assignment and Acceptance, Borrower, at its
own expense, shall execute and deliver to the Agent, in exchange for the
surrendered Note or Notes, a new Note or Notes to the order of such assignee in
a principal amount equal to the applicable Commitments assumed by it pursuant to
such Assignment and Acceptance and new Note or Notes to the assigning Lender in
the amount of its retained
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<PAGE> 65
Commitment or Commitments. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the date of the surrendered Note or Notes which
they replace, and shall otherwise be in substantially the form attached hereto.
(d) Each Lender may sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments in the Loans owing to it and the
Notes held by it), provided, however, that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participating bank or other entity shall not be entitled to the
benefit (except through its selling Lender) of the cost protection provisions
contained in Article 4. of this Agreement, and (iv) Borrower and the Agent and
other Lenders shall continue to deal solely and directly with each Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Credit Documents, and such Lender shall retain the sole right to
enforce the obligations of Borrower relating to the Loans and to approve any
amendment, modification or waiver of any provisions of this Agreement.
(e) Any Lender or participant may, in connection with the assignment or
participation or proposed assignment or participation, pursuant to this Section,
disclose to the assignee or participant or proposed assignee or participant any
information relating to Borrower and its Subsidiaries furnished to such Lender
by or on behalf of Borrower or any other Subsidiary. With respect to any
disclosure of confidential, non-public, proprietary information, such proposed
assignee or participant shall agree to use the information only for the purpose
of making any necessary credit judgments with respect to this credit facility
and not to use the information in any manner prohibited by any law, including
without limitation, the securities laws of the United States. The proposed
participant or assignee shall agree not to disclose any of such information
except as permitted by Section 11.15. hereof. The proposed participant or
assignee shall further agree to return all documents or other written material
and copies thereof received from any Lender, the Agent or Borrower relating to
such confidential information unless otherwise properly disposed of by such
entity.
(f) Any Lender may at any time assign all or any portion of its rights in
this Agreement and the Notes issued to it to a Federal Reserve Bank; provided
that no such assignment shall release the Lender from any of its obligations
hereunder.
(g) If (i) any Taxes referred to in Section 4.8.(b) have been levied or
imposed so as to require withholdings and reductions by the Borrower and payment
by the Borrower of additional amounts to any Lender as a result thereof or any
Lender shall make demand for payment of any material additional amounts as
compensation for increased costs pursuant to Section 4.11., then and in such
event, upon request from the Borrower delivered to such Lender and the Agent,
such Lender shall assign, in accordance with the provisions of Section 11.6.(c),
all of its rights and obligations under this Agreement and the other Credit
Documents to another Lender or other financial institution selected by the
Borrower and consented to by the Agent in consideration for the payment by such
assignee to the Lender of the principal of and interest on the outstanding Loans
accrued to the date of such assignment and the assumption of such Lender's
Revolving Credit Commitment, together with any and all other amounts owing to
such Lender under any provisions of this Agreement or the other Credit Documents
accrued to the date of such assignment.
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<PAGE> 66
SECTION 11.7. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE
STATE OF GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, THE
NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE SUPERIOR COURT OF
FULTON COUNTY, GEORGIA, OR ANY OTHER COURT OF THE STATE OF GEORGIA OR OF THE
UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF GEORGIA, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, BORROWER HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS.
(c) THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY, AND BORROWER
HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(d) Nothing herein shall affect the right of the Agent, any Lender, any
holder of a Note or the Borrower or any of its Restricted Subsidiaries to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against Borrower in any other jurisdiction.
SECTION 11.8. INDEPENDENT NATURE OF LENDERS' RIGHTS.
The amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights pursuant to this Agreement and its Notes, and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
SECTION 11.9. COUNTERPARTS.
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
SECTION 11.10. EFFECTIVENESS; SURVIVAL.
(a) This Agreement shall become effective on the date (the "Effective
Date") on which all of the parties hereto shall have signed a copy hereof
(whether the same or different copies) and shall have delivered the same to the
Agent pursuant to Section 11.1. or, in the case of the Lenders, shall have given
to the Agent written (which may be delivered by facsimile) that the same has
been signed and mailed to them.
(b) The obligations of Borrower under Sections 4.8.(b), 4.11., 4.13.,
4.14., 4.17. and 11.4. hereof shall survive the payment in full of the Notes
after the Maturity Date. All representations and warranties made herein, in the
certificates, reports, notices, and other documents delivered pursuant to this
Agreement shall survive the execution and delivery of this Agreement, the other
Credit Documents, and such other agreements and documents, the making of the
Loans hereunder, and the execution and delivery of the Notes.
SECTION 11.11. SEVERABILITY.
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<PAGE> 67
In case any provision in or obligation under this Agreement or the other Credit
Documents shall be invalid, illegal or unenforceable, in whole or in part, in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 11.12. INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or be otherwise within the
limitation of, another covenant, shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.
SECTION 11.13. CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR TAX LAWS.
If (i) any preparation of the financial statements referred to in Section 7.7.
hereafter occasioned by the promulgation of rules, regulations, pronouncements
and opinions by or required by the Financial Accounting Standards Board or the
American Institute of Certified Public Accounts (or successors thereto or
agencies with similar functions) result in a material change in the method of
calculation of financial covenants, standards or terms found in this Agreement,
(ii) there is any change in Borrower's fiscal quarter or fiscal year, or (iii)
there is a material change in federal tax laws which materially affects any of
the Borrower and its Restricted Subsidiaries' ability to comply with the
financial covenants, standards or terms found in this Agreement, Borrower and
the Required Lenders agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating any of the Borrower and its Restricted Subsidiaries'
financial condition shall be the same after such changes as if such changes had
not been made. Unless and until such provisions have been so amended in
accordance with Section 11.2 hereof, the provisions of this Agreement shall
govern.
SECTION 11.14. HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT.
The headings of the several sections and subsections of this Agreement are
inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement. This Agreement, the other
Credit Documents, and the agreements and documents required to be delivered
pursuant to the terms of this Agreement constitute the entire agreement among
the parties hereto and thereto regarding the subject matters hereof and thereof
and supersede all prior agreements, representations and understandings related
to such subject matters.
SECTION 11.15. DISCLOSURE OF CONFIDENTIAL INFORMATION.
The Agent and the Lenders agree to use their best efforts to hold in confidence
and not disclose any written information (other than information (i) which was
publicly known from a source other than the Borrower or a Subsidiary, at the
time of disclosure (except pursuant to disclosure in connection with this
Agreement), (ii) which subsequently becomes publicly known through no act or
omission by them, or (iii) which otherwise becomes known to them, (other than
through disclosure by the Borrower or a Subsidiary or by any other Person whom
the Agent or such Lender has reason to believe disclosed such information in
violation of or contrary to the confidentiality requirements or policies of the
Borrower or a Subsidiary) delivered or made available by or on behalf of the
Borrower or any Subsidiary to them (including without limitation any non-public
information obtained pursuant to Section 7.5. or 7.7.) in connection with or
pursuant to this Agreement which is proprietary in nature and clearly marked or
labeled as being confidential information, provided that nothing herein shall
prevent the Agent or any Lender from delivering copies of any financial
statements and other documents delivered to the Agent or such Lender, and
disclosing any other information disclosed to the Agent or such Lender, by or on
behalf of the
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<PAGE> 68
Borrower or any Subsidiary in connection with or pursuant to this Agreement to
(i) the Agent's or such Lender's Affiliates, directors, officers, employees,
agents and professional consultants, (ii) any other Lender, (iii) any Person to
which such Lender offers to assign its Notes or Commitments or any part thereof
(which Person agrees to be bound by the provisions of this Section 11.15), (iv)
any Person to which such Lender sells or offers to sell a participation in all
or any part of its Notes or Commitments (which Person agrees to be bound by the
provisions of this Section 11.15), (v) any federal or state regulatory authority
having jurisdiction over the Agent or such Lender, and (vi) any other Person to
which such delivery or disclosure may be necessary (a) to effect compliance with
any law, rule, regulation or order applicable to the Agent or such Lender, (b)
in response to any subpoena or other legal process, (c) in connection with any
litigation to which the Agent or such Lender is a party, (d) as may be
reasonably required in connection with the exercise of rights or remedies under
this Agreement or any other Credit Document or (e) to any actual or prospective
counterparty (or its advisors) in any swap or derivative transaction relating to
the Borrower, any Restricted Subsidiary or its or their obligations.
SECTION 11.16. INTEREST.
In no event shall the amount of interest, and all charges, amounts or fees
contracted for, charged or collected pursuant to this Agreement, the Notes or
the other Credit Documents and deemed to be interest under applicable law
(collectively, "Interest") exceed the highest rate of interest allowed by
applicable law (the "Maximum Rate"), and in the event any such payment is
inadvertently received by any Lender, then the excess sum (the "Excess") shall
be credited as a payment of principal, unless the Borrower shall notify such
Lender in writing that it elects to have the Excess returned forthwith. It is
the express intent hereof that the Borrower not pay and the Lenders not receive,
directly or indirectly in any manner whatsoever, interest in excess of that
which may legally be paid by the Borrower under applicable law. The right to
accelerate maturity of any of the Loans does not include the right to accelerate
any interest that has not otherwise accrued on the date of such acceleration,
and the Agent and the Lenders do not intend to collect any unearned interest in
the event of any such acceleration. All monies paid to the Agent or the Lenders
hereunder or under any of the Notes or the other Credit Documents, whether at
maturity or by prepayment, shall be subject to rebate of unearned interest as
and to the extent required by applicable law. By the execution of this
Agreement, the Borrower covenants, to the fullest extent permitted by law, that
(i) the credit or return of any Excess shall constitute the acceptance by the
Borrower of such Excess, and (ii) the Borrower shall not seek or pursue any
other remedy, legal or equitable, against the Agent or any Lender, based in
whole or in part upon contracting for charging or receiving any Interest in
excess of the Maximum Rate. For the purpose of determining whether or not any
Excess has been contracted for, charged or received by the Agent or any Lender,
all interest at any time contracted for, charged or received from the Borrower
in connection with this Agreement, the Notes or any of the other Credit
Documents shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread in equal parts throughout the full term of the
Commitments. The Borrower, the Agent and each Lender shall, to the maximum
extent permitted under applicable law, (i) characterize any non-principal
payment as an expense, fee or premium rather than as Interest and (ii) exclude
voluntary prepayments and the effects thereof. The provisions of this Section
shall be deemed to be incorporated into each Note and each of the other Credit
Documents (whether or not any provision of this Section is referred to therein).
All such Credit Documents and communications relating to any Interest owed by
the Borrower and all figures set forth therein shall, for the sole purpose of
computing the extent of obligations hereunder and under the Notes and the other
Credit Documents be automatically recomputed by the Borrower, and by any court
considering the same, to give effect to the adjustments or credits required by
this Section.
SECTION 11.17 LIMITATION ON DAMAGES.
NEITHER SUNTRUST BANK, NOR SUNTRUST EQUITABLE SECURITIES CORPORATION NOR ANY
LENDER SHALL BE RESPONSIBLE OR LIABLE TO THE BORROWER, ANY OF
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<PAGE> 69
ITS SUBSIDIARIES, OFFICERS, DIRECTORS OR SHAREHOLDERS FOR ANY PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF THIS
AGREEMENT, THE CREDIT DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY.
[Signatures on Next page]
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<PAGE> 70
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered in Atlanta, Georgia, by their duly authorized officers as
of the day and year first above written.
ROCK-TENN COMPANY
(CORPORATE SEAL) By:
---------------------------------------------
Title:
---------------------------------------
Attest:
By:
--------------------
Title:
Address for notice:
Rock-Tenn Company
P.O. Box 4098
Norcross, Georgia 30091
Attention: Chief Financial Officer
[Signatures Continued on Next Page]
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<PAGE> 71
[SIGNATURE PAGE TO CREDIT AGREEMENT]
SUNTRUST BANK, AS AGENT, SWING LINE LENDER
AND A LENDER
By:
---------------------------------------
Title:
---------------------------------
REVOLVING CREDIT COMMITMENT $110,000,000
Address for Notices
For General Notices:
SunTrust Bank
303 Peachtree Street, N.E.
2nd Floor
Atlanta, GA 30308
Telephone: (404) 588-8684
Facsimile: (404) 588-8833
Attention: Chris Deisley
For Administrative/Operations Notices:
SunTrust Bank
P. O. Box 4418
Mail Code 1944
Atlanta, GA 30303
Telephone: (404) 724-3751
Facsimile: (404) 658-4906
Attention: Robert Ivy
[Signatures continued on next page]
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<PAGE> 72
[SIGNATURE PAGE TO CREDIT AGREEMENT]
__WACHOVIA BANK, N.A., AS A LENDER AND
DOCUMENTATION AGENT
By:
------------------------------------
Title:
------------------------------
REVOLVING CREDIT COMMITMENT $100,000,000
Address for Notices
For General Notices:
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Telephone: (404) 332-4088
Facsimile: (404) 332-4048
Attention: Anne Sayles
For Administrative/Operations Notices:
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Telephone: (404) 332-6554
Facsimile: (404) 332-6408
Attention: Sharon Westmoreland
[Signatures continued on next page]
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<PAGE> 73
[SIGNATURE PAGE TO CREDIT AGREEMENT]
_BANK OF AMERICA, N.A., AS A LENDER AND
SYNDICATION AGENT
By:
--------------------------------------
Title:
--------------------------------
REVOLVING CREDIT COMMITMENT $100,000,000
Address for Notices
For General Notices:
Bank of America, N.A.
555 California St.
Mailcode: CA5-705-41-01
San Francisco, CA 94104
Telephone: 415) 622-4567
Facsimile: 415) 622-4585
Attention: evin F. Sullivan
For Administrative/Operations Notices:
Bank of America, N.A.
1850 Gateway Blvd.
Concord, CA 94520
Telephone: (925) 675-7659
Facsimile: (925) 969-2843
Attention: Lynn Famularcano
[Signatures continued on next page]
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<PAGE> 74
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE CHASE MANHATTAN BANK,
AS A LENDER
By:
---------------------------------------
Title:
---------------------------------
REVOLVING CREDIT COMMITMENT $40,000,000
Address for Notices
For General Notices:
The Chase Manhattan Bank
270 Park Ave.-23
New York, NY 10017
Telephone: (212) 270-5964
Facsimile: (212) 270-0998
Attention: Gary L. Spevack
For Administrative/Operations Notices:
The Chase Manhattan Bank
1 Chase Manhattan Plaza 8
New York, NY 10081
Telephone: (212) 652-7336
Facsimile: (212) 652-7490
Attention: Donna Schurmann
[Signatures continued on next page]
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<PAGE> 75
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE BANK OF TOKYO-MITSUBISHI,
LTD., AS A LENDER
By:
---------------------------------------
Title:
---------------------------------
REVOLVING CREDIT COMMITMENT $40,000,000
Address for Notices
For General Notices:
The Bank of Tokyo-Mitsubishi, Ltd. - Atlanta Agency
Georgia Pacific Center
133 Peachtree Street, N.E., Suite 3450
Atlanta, GA 30303-1808
Telephone: (404) 222-4210
Facsimile: (404) 577-1155
Attention: Randy L. Glass
For Administrative/Operations Notices:
BTM Information Services, Inc.
c/o The Bank of Tokyo-Mitsubishi, Ltd., NY Branch
1251 Avenue of the Americas, 12th Floor
New York, NY 10020-1104
Telephone: (201) 413-8570
Facsimile: (201) 521-2304
Attention: Rolando Uy
[Signatures continued on next page]
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<PAGE> 76
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE BANK OF NEW YORK,
AS A LENDER
By:
------------------------------------
Title:
------------------------------
REVOLVING CREDIT COMMITMENT $20,000,000
Address for Notices
For General Notices:
The Bank of New York
1 Wall Street, 22nd Fl.
New York, NY 10286
Telephone: (212) 635-6899
Facsimile: (212) 635-6434
Attention: David Siegel
For Administrative/Operations Notices:
Bank of New York
1 Wall Street, 22nd Floor
New York, NY 10286
Telephone: (212) 635-6780
Facsimile: (212) 635-6399
Attention: Shaun Mottley
[Signatures continued on next page]
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<PAGE> 77
[SIGNATURE PAGE TO CREDIT AGREEMENT]
FIRST UNION NATIONAL BANK,
AS A LENDER
By:
------------------------------------
Title:
------------------------------
REVOLVING CREDIT COMMITMENT $20,000,000
Address for Notices
For General Notices:
First Union National Bank
999 Peachtree Street
Atlanta, GA 30309
Telephone: 404) 827-7159
Facsimile: 404) 827-7199
Attention: ob Sevin
For Administrative/Operations Notices:
First Union National Bank
999 Peachtree Street
Atlanta, GA 30309
Telephone: (404) 225-4013
Facsimile: (404) 225-4258
Attention: Tricia Campion
[Signatures continued on next page]
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<PAGE> 78
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE FUJI BANK, LIMITED,
AS A LENDER
By:
-------------------------------------
Title:
-------------------------------
REVOLVING CREDIT COMMITMENT $20,000,000
Address for Notices
For General Notices:
The Fuji Bank, Limited
New York Branch
Two World Trade Center
New York, NY 10048
Telephone: (212) 898-2067
Facsimile: (212) 912-0516
Attention: Chigusa Tada
For Administrative/Operations Notices:
The Fuji Bank, Limited
New York Branch
Two World Trade Center
New York, NY 10048
Telephone: 212) 898-2099
Facsimile: 212) 488-8216
Attention: Tina Catapano
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<PAGE> 79
SCHEDULE 1.01(A)
APPLICABLE MARGIN AND FACILITY FEE PERCENTAGE
<TABLE>
<CAPTION>
-------------------------------------------------------------
<S> <C> <C> <C>
Pricing Total Funded Applicable Facility Fee
Level Debt to Margin Percentage
EBITDA Ratio
-------------------------------------------------------------
I Less than .625% p.a. .125% p.a.
1.50:1.00
-------------------------------------------------------------
II Less than .750% p.a. .125% p.a.
2.00:1.00 but
greater than or
equal to
1.50:1.00
-------------------------------------------------------------
III Less than .850% p.a. .15% p.a.
2.50:1.00 but
greater than or
equal to
2.00:1.00
-------------------------------------------------------------
IV Less than 1.05% p.a. .20% p.a.
3.00:1.00 but
greater than or
equal to
2.50:1.0
-------------------------------------------------------------
V Less than 1.125% p.a. .25% p.a.
3.50:1.00 but
greater than or
equal to
3.00:1.00
-------------------------------------------------------------
VI Greater than or 1.375% p.a. .375% p.a.
equal to
3.50:1.00
-------------------------------------------------------------
</TABLE>
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