<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15 (D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For Quarter Ended October 3, 1998 Commission File No. 0-1915
THOMASTON MILLS, INC.
- --------------------------------------------------------------------------------
GEORGIA 58-0460470
- -------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
115 East Main Street, P.O. Box 311, Thomaston, Georgia 30286-0004
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (706) 647-7131.
--------------
Indicate the number of shares outstanding of each of the issuer's classes of
Common Stock, as of the close of the period covered by this report.
Class A Common Stock $1 Par Value - 5,620,518 Shares including
710,838 Treasury Shares
Class B Common Stock $1 Par Value - 1,873,506 Shares including
243,140 Treasury Shares
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports) and (2) has been subject to such filing for
the past 90 days.
Yes X No
------- -------
<PAGE> 2
INDEX
THOMASTON MILLS, INC. AND SUBSIDIARY
PART 1. FINANCIAL INFORMATION
Item 1. Financial Statements (Unaudited)
Condensed consolidated balance sheets -- October 3, 1998 and June 27,
1998
Condensed consolidated statements of operations -- fourteen weeks ended
October 3, 1998 and thirteen weeks ended September 27, 1997.
Condensed consolidated statements of cash flows -- fourteen weeks ended
October 3, 1998 and thirteen weeks ended September 27, 1997.
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
Item 2. Change in Securities
Item 3. Defaults upon Senior Securities
Item 4. Submission of Matters to a vote of Security Holders
Item 5. Other information
Item 6. Exhibits and Reports on Form 8-K
SIGNATURES
<PAGE> 3
PART 1 - FINANCIAL INFORMATION
THOMASTON MILLS, INC. AND SUBSIDIARY
CONDENSED CONSOLIDATED BALANCE SHEETS
(Dollars in Thousands)
<TABLE>
<CAPTION>
October 3, 1998 June 27, 1998
--------------- -------------
ASSETS
<S> <C> <C>
CURRENT ASSETS
Cash & cash equivalents $ 532 $ 1,122
Accounts receivable, less allowance of
$871 39,541 46,268
Inventories--Note B 53,034 46,585
Other current assets 12,918 8,832
--------- --------
TOTAL CURRENT ASSETS 106,025 102,807
PROPERTY, PLANT AND EQUIPMENT 252,011 251,159
Less allowance for depreciation 172,240 168,336
--------- --------
79,771 82,823
OTHER ASSETS 4,680 4,536
-------- --------
$ 190,476 $190,166
========= ========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $ 15,312 $ 11,805
Accrued liabilities 7,765 8,101
Current portion of long-term debt
and capital lease obligations 2,039 2,648
--------- --------
TOTAL CURRENT LIABILITIES 25,116 22,554
OBLIGATIONS UNDER CAPITAL LEASE -
LESS CURRENT PORTION 1,270 1,361
LONG-TERM DEBT 74,200 72,268
DEFERRED INCOME TAXES 4,907 4,907
OTHER LIABILITIES 3,005 2,861
SHAREHOLDERS' EQUITY
Class A Common Stock--5,620,518 shares
outstanding including 710,838 treasury shares 5,621 5,621
Class B Common Stock--1,873,506 shares
outstanding including 243,140 treasury shares 1,873 1,873
Additional paid-in capital 8,904 8,904
--------- --------
Retained earnings 71,000 75,237
Less treasury stock - at cost 5,420 5,420
--------- --------
81,978 86,215
--------- --------
$ 190,476 $190,166
========= ========
</TABLE>
NOTE: The Balance Sheet at June 27, 1998 has been
derived from the Audited Financial Statements at that
date. See Notes to Condensed Financial Statements.
<PAGE> 4
THOMASTON MILLS, INC. AND SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Dollars in Thousands except Share and Per Share Data)
<TABLE>
<CAPTION>
Fourteen Weeks Thirteen Weeks
Ended Ended
October 3, 1998 September 27, 1997
--------------- ------------------
<S> <C> <C>
Net sales $ 60,988 $ 73,212
Cost of sales 60,621 71,305
----------- -----------
367 1,907
Selling, general
and administrative expenses 5,365 5,154
----------- -----------
(4,998) (3,247)
Other income (expense) - net 144 103
----------- -----------
(4,854) (3,144)
Interest expense 1,585 1,327
----------- -----------
Income (loss) before
income taxes (6,439) (4,471)
Provision for income taxes
(benefit) (2,447) (1,699)
----------- -----------
Net income (loss) $ (3,992) $ (2,772)
=========== ===========
Weighted Average Number of Shares - Basic 6,540,046 6,539,996
Basic earnings (loss) per share $ (0.6100) $ (0.4200)
Weighted Average Number of Shares - Diluted 6,540,046 6,539,996
Diluted earnings (loss) per share $ (0.6100) $ (0.4200)
Dividends paid per share $ 0.0375 $ 0.0750
</TABLE>
<PAGE> 5
THOMASTON MILLS, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in Thousands)
<TABLE>
<CAPTION>
Fourteen Weeks Thirteen Weeks
Ended Ended
October 3, 1998 September 27, 1997
--------------- ------------------
OPERATING ACTIVITIES
<S> <C> <C>
Net income (loss) $(3,992) $(2,772)
Adjustments to reconcile net income (loss)
to net cash provided by operating
activities:
Depreciation and amortization 3,905 4,220
Gain on sale of property, plant
and equipment (35) 0
Changes in operating assets and liabilities:
Accounts receivable 6,728 (782)
Inventories (6,449) (2,981)
Other assets (4,230) (1,959)
Accounts payable and accrued expenses 3,685 3,566
------- -------
NET CASH USED IN
OPERATING ACTIVITIES (388) (708)
INVESTING ACTIVITIES
Purchases of property, plant and equipment (852) (3,534)
Proceeds from sales of property, plant
and equipment 35 1
------- -------
NET CASH USED IN INVESTING
ACTIVITIES (817) (3,533)
FINANCING ACTIVITIES
Proceeds from revolving lines of credit
and long-term debt 3,500 4,000
Principal payments on revolving lines of
credit, long-term debt and capital lease
obligations (2,640) (458)
Cash dividends paid (245) (491)
------- -------
NET CASH PROVIDED BY
FINANCING ACTIVITIES 615 3,051
------- -------
DECREASE IN CASH
AND CASH EQUIVALENTS (590) (1,190)
Cash and cash equivalents at beginning
of period 1,122 1,886
------- -------
Cash and cash equivalents at end
of period $ 532 $ 696
======= =======
</TABLE>
<PAGE> 6
THOMASTON MILLS, INC. AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
OCTOBER 3, 1998
NOTE A -- BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Rule 10-01 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three month period ended October 3,
1998 are not necessarily indicative of the results that may be expected for the
year ending July 3, 1999. Certain Fiscal 1998 balances have been reclassified to
conform with the Fiscal 1999 classifications. For further information, refer to
the consolidated financial statements and footnotes thereto included in the
Company's annual report for the year ended June 27, 1998.
NOTE B -- INVENTORIES
The components of inventory consist of the following:
<TABLE>
<CAPTION>
(Dollars in Thousands)
October 3, 1998 June 27, 1998
--------------- -------------
<S> <C> <C>
Raw materials $ 7,456 $ 7,569
Work in process 34,116 29,525
Finished products 23,058 21,631
LIFO reserve (11,596) (12,140)
-------- --------
$ 53,034 $ 46,585
======== ========
</TABLE>
<PAGE> 7
NOTE C -- NET INCOME (LOSS) PER COMMON SHARE
The Company adopted Statement of Financial Accounting Standards ("SFAS") No. 128
"Earnings per Share" in its second quarter ended on December 27, 1997. SFAS No.
128 replaced the previously reported primary and fully diluted earnings per
share with basic and diluted earnings per share. Unlike primary earnings per
share, basic earnings per share excludes any dilutive effects of options,
warrants and convertible securities. Diluted earnings per share is very similar
to the previously reported fully diluted earnings per share. All earnings per
share amounts for all periods have been presented and where necessary, restated
to conform to SFAS No. 128 requirements.
The following table sets forth the computation of the numerator and denominator
used in the calculation of basic and diluted earnings per share:
<TABLE>
<CAPTION>
(Dollars in Thousands except Share and Per Share Date)
Fourteen Weeks Thirteen Weeks
Ended Ended
October 3, 1998 September 27, 1997
--------------- ------------------
Numerator:
<S> <C> <C>
Net income (loss) from continuing operations $ (3,992) $ (2,772)
----------- -----------
Numerator for basic and diluted earnings (loss) per share $ (3,992) $ (2,772)
----------- -----------
Denominator:
Denominator for basic earnings (loss) per share -
Weighted average shares 6,540,046 6,539,996
Dilutive effect of potential common shares -
Employee stock options N/A N/A
----------- -----------
Denominator for diluted earnings (loss) per share -
adjusted weighted-average shares and
assumed conversions 6,540,046 6,539,996
----------- -----------
Basic earnings (loss) per share $ (0.6100) $ (0.4200)
----------- -----------
Diluted earnings (loss) per share $ (0.6100) $ (0.4200)
----------- -----------
Potentially dilutive common shares related to options outstanding:
Not considered in calculation due to net loss 257 1,744
----------- -----------
Not considered in calculation due to average
price of Company's common stock exceeding
exercise price of options 907,367 578,220
----------- -----------
</TABLE>
<PAGE> 8
THOMASTON MILLS, INC. AND SUBSIDIARY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
RESULTS OF OPERATIONS
Sales for the first fiscal quarter ended October 3, 1998 were down 16.7% to
$60,988,000 from first quarter sales last year of $73,212,000. Sales declined
across the board in each of the Company's markets; although, the largest
decreases were in the Consumer Products and Industrial areas. Continued
depressed market conditions in these areas resulted in less units sold along
with less sales dollars per unit being generated.
Cost of sales for the quarter just ended increased to 99.4% of sales or
$60,621,000. For the first quarter fiscal year 1998, cost of goods sold was
97.4% of sales or $71,305,000. Lower sales levels have caused the Company's
manufacturing facilities to operate at below optimum capacity levels. This low
capacity utilization and the resulting higher fixed costs per unit have offset
declines the Company has experienced in raw material costs.
Gross profit for the first quarter was 0.6% of sales as compared to 2.6% of
sales for the first quarter last year.
Selling, general and administrative expenses increased from $5,154,000 or 7.0%
of sales for first quarter fiscal year 1998 to $5,365,000 or 8.8% of sales for
first quarter 1999. This $211,000 increase is primarily the result of increased
design and artwork in the Consumer Products area.
Other income during the first quarter fiscal years 1999 and 1998 respectively
was $144,000 and $103,000. Other income relates to miscellaneous equipment sales
and interest earned on the Company's short-term investments of cash.
Interest expense increased $258,000 from $1,327,000 in first quarter fiscal year
1998 to $1,585,000 in first quarter fiscal year 1999. This increase was the
result of increased borrowings and higher interest rates under the Company's
various credit agreements.
The Company's pretax loss for first quarter 1999 resulted in an income tax
benefit of $2,447,000 or 38% of pretax loss. The statutory tax rate for the tax
jurisdictions in which the Company operates is 38%.
For first quarter fiscal year 1999, the Company sustained a loss of $3,992,000
or $ .61 per basic and diluted share as compared to a first quarter fiscal year
1998 net loss of $2,772,000 or $ .42 per basic and diluted share.
LIQUIDITY AND CAPITAL RESOURCES
The Company continues to maintain a strong financial position. At October 3,
1998, working capital was $80,909,000 as compared to $79,448,000 at September
27, 1997. The ratio of current assets to current liabilities was 4.22:1 at
October 3, 1998, and 3.56:1 at September 27, 1997.
<PAGE> 9
Financing activities provided cash flow of $615,000 during the quarter ended
October 3, 1998. The primary use of funds was $817,000 in net purchases of
property, plant and equipment. Operating activities used funds of $388,000.
On August 19, 1998, the Company entered into a new two-year credit agreement
with a group of banks for borrowings up to $80,250,000 including a revolving
credit facility up to $45,000,000, a term loan of $18,000,000 and standby
letters of credit of $17,250,000. Proceeds from this credit agreement were used
to refinance the Company's revolving credit facility, a long-term note payable
due March 2001 in the amount of $2,150,000 and a portion of the Industrial
Revenue Bonds existing at June 27, 1998. Standby letters of credit were issued
to provide credit enhancement of other credit facilities existing at June 27,
1998. Borrowings under this credit agreement are secured by all assets and
properties (excluding real estate) of the Company. The borrowings available
under the revolving credit facility are based on the amount of eligible trade
accounts receivable and inventories. At October 3, 1998, the Company had the
ability to borrow up to an additional $1,010,000 under the revolving credit
facility. The interest rate on borrowings under this line is based on the prime
interest rate or the London interbank offered rate (LIBOR). The Company pays
facility fees on the unused portions of the committed credit line.
The credit agreement contains various restrictions relating to, among other
things, net working capital, minimum cumulative earnings before interest, taxes,
depreciation and amortization (EBITDA), and debt to equity ratios. Also included
are certain restrictions on capital expenditures and the amount of cash
dividends that may be paid. During the first quarter of fiscal 1999, the Company
failed to attain the minimum cumulative EBITDA; however, the Company's lenders
waived the minimum cumulative EBITDA requirement for the first quarter of fiscal
1999.
ORGANIZATIONAL CHANGES
On September 16, 1998, the Company announced its plans to close its Griffin,
Georgia, yarn facility and to transfer its production to other Company
facilities. The consolidation of the Company's yarn production at one plant is
designed to improve manufacturing capacity utilization. All employees at the
Griffin plant will be offered transfers to other Company facilities. Plans are
for the Griffin facility to be closed by mid November 1998, and for the facility
to be offered for sale.
The Company is reorganizing along division lines and, effective October 16,
1998, H. Stewart Davis was elected Executive Vice President of the Company and
President - Consumer Products Division and George H. Hightower, Jr. was elected
Executive Vice President of the Company and President - Apparel Fabrics
Division. Mr. Neil H. Hightower, President and CEO, also announced that William
James joined the Company as Director of Operations Planning and Control.
INVENTORIES
Inventories at October 3, 1998, and September 27, 1997, were $53,034,000 and
$51,710,000, respectively. Total inventory turns on an average annualized rate
were 4.6 times for first quarter 1999 and 5.5 times for first quarter 1998.
<PAGE> 10
RAW MATERIALS
The Company's primary raw material is cotton. As a commodity, cotton is traded
on established markets and periodically experiences price fluctuations. The
Company monitors the cotton market and buys its cotton from brokers. The Company
has not had and does not currently anticipate any material difficulty in
obtaining cotton.
In order to assure a continuous supply of cotton, the Company enters into cotton
purchase contracts for several months in advance of delivery which either
provide for (1) fixed quantities to be purchased at a pre-determined price, or
(2) fixed quantities to be purchased at a price to be determined (at a later
date). When the Company sells its product to its customers, the cost of cotton
under existing cotton purchase contracts is taken into account in calculating
the price for the Company's product. The Company generally attempts to match
product sales contracts with fixed price cotton purchase contracts and uses
market price cotton contracts to anticipate future needs and subsequent product
sales contracts. To the extent prices are sometimes fixed in advance of
shipment, the Company may benefit from its cotton purchase contracts to the
extent prices thereafter rise, or incur increased cost to the extent prices
thereafter fall.
GATT
In December 1993, 117 countries reached an agreement under the General Agreement
on Tariffs and Trade that would cover new areas of trade, further cut tariffs
and strengthen multilateral free-trade rules by creating a World Trade
Organization (WTO) as its successor. This agreement was ratified by the United
States Congress and went into effect on July 1, 1995. As part of this new
agreement, the Multifiber Arrangement (MFA) under which textile and apparel
trade had been controlled, will be phased out along with its import quotas over
a ten-year period. Tariffs on textiles will be cut by an average of 11.6% over
ten years. A weighted average tariff for products sold by Thomaston Mills, if
imported, would be cut by 8.8%. Under the agreement, quotas on the least
sensitive import products will be phased out over the first five years and
quotas on the most sensitive import products will not be affected until the
latter part of the ten-year period.
The WTO agreement contains some provisions which may have a favorable impact on
the textile industry. An assembly rule of origin amendment makes it illegal for
a non-WTO member country to assemble garments from pieces cut in a member
country and then export the garments as originating in the country where they
were cut. Additionally, the agreement preserves the authority of the President
of the United States to control imports from non-WTO countries such as Taiwan or
China.
Although the WTO agreement may reduce the cost of certain imported textiles, the
Company believes that upgraded technology resulting in increased productivity
and lower costs will enable it to compete in a global market.
RATTLERS BRAND
In January 1998, the Company entered into a license agreement by which it agreed
to license (with an option to purchase) its Rattlers Brand trademark. Under this
agreement, the Company will be paid a royalty for sales of products using the
Rattlers Brand trademark. The agreement is for a term of twelve years and
includes provisions for minimum annual royalty payments.
<PAGE> 11
YEAR 2000
The Company is committed to being Year 2000 compliant by December 31, 1998. A
task force was formed two years ago with representatives from data processing,
greige manufacturing, finishing, purchasing, accounting and internal audit. The
company-wide endeavor, which involves the testing, assessment and remediation of
both information technology and non-information technology systems, is designed
to significantly reduce the risk of business interruption to Thomaston Mills'
internal operations, business partners, customers, and suppliers as the next
century approaches.
The millennium issue is being addressed on two fronts:
Internal - most internally developed systems have been rewritten since 1990.
Beginning in 1991, a standard feature incorporated into all rewrites was a four
digit year capability. Intensive review modification and testing of all internal
programs began in January 1998. As of October 3, 1998, the work was
approximately 85% complete. As testing of the systems continues, the Company
will determine whether contingency plans must be developed and implemented to
address any system failures or interruptions. Testing is scheduled to be
completed prior to the end of the second quarter of fiscal 1999.
External - the Company has inventoried all equipment in use within the Company
that contains a computer chip or uses externally developed software. The
manufacturers are being contacted for Year 2000 compliance certification. The
Company's customers and vendors are also being contacted for written Year 2000
assurance. As of October 3, 1998, approximately one half of those customers and
business partners contacted have responded and, to date, the Company has not
been informed of any external systems or equipment with a Year 2000 compliance
issue that could materially impair the Company's business, financial condition
or results of operations. However, the Company has no means of ensuring that
such external systems or equipment will not encounter compliance problems. The
Company will continue to monitor the progress of its material vendors, partners
and customers in addressing those issues, and will develop contingency plans if
potential problems are identified.
Anticipated costs for the compliance effort total $450,000, most of which has
been incurred and expensed. To date, the Company's review has not revealed any
significant problems that are expected to require further remediation relative
to the year 2000 issue; however, there can be no assurance that the Company's
systems or equipment, or those of its vendors, customers or other third parties,
will be made Year 2000 compliant in a timely manner or that the impact of the
failure to achieve such compliance will not have a material adverse effect on
the Company's business, financial condition or results of operations.
FORWARD-LOOKING STATEMENTS
Certain of the above statements contained herein under the caption "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
constitute "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1996. Such forward-looking statements
involve known and unknown risks, uncertainties and other factors which may cause
the actual results, performance or achievements of the Company to be materially
different from any future results, performance or achievements expressed or
implied by such forward-looking statements. Such factors include, among other
things, business conditions, volatility of commodities markets, ability to
control operating costs, developing successful new products and maintaining
effective pricing and promotion of its products.
<PAGE> 12
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
(a) As of October 3, 1998, there were no material pending legal
proceedings, other than routine litigation incidental to its
business, to which the Company was a party or to which any
property of the Company was subject. Such routine legal
proceedings are not believed to be material to the Company.
(b) Not applicable
ITEM 2. CHANGE IN SECURITIES
(a) (b) Not applicable.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
(a) (b) Not applicable.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The election of directors and selection of Ernst & Young as the
Company's independent auditors were approved by the holders of
the Company's Class B Common Stock at the Annual Meeting of
Shareholders held on October 1, 1998. Set forth below are the
results of the voting:
<TABLE>
<CAPTION>
Votes Votes
For Against Abstentions Withheld
-------- ------- ----------- --------
Election of Directors
<S> <C> <C> <C> <C>
Thomas D. Adams, Jr. 1,501,970 0 11,779 8,500
C. Ronald Barfield 1,501,970 0 11,779 8,500
Archie H. Davis 1,509,470 0 11,779 1,000
H. Stewart Davis 1,509,470 0 11,779 1,000
George H. Hightower 1,501,970 0 11,779 8,500
George H. Hightower, Jr. 1,509,470 0 11,779 1,000
Neil H. Hightower 1,509,470 0 11,779 1,000
William H. Hightower, Jr. 1,501,970 0 11,779 8,500
Rosser R. Raines 1,501,970 0 11,779 8,500
Dr. Jerry M. Williamson 1,509,470 0 11,779 1,000
Dom H. Wyant 1,501,970 0 11,779 8,500
SELECTION OF ERNST & YOUNG 1,514,413 7,836 66 0
</TABLE>
<PAGE> 13
ITEM 5. OTHER INFORMATION
On October 22, 1998, the Company's Class B Common Stock began trading
on the Nasdaq Smallcap Market under the ticker symbol TMSTB. The Class
B Common Stock had previously traded on the Nasdaq National Market, but
no longer met certain of the listing criteria, including the minimum
public float requirement. The Company's Class A Common Stock continues
to trade on the Nasdaq National Market under the symbol TMSTA.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
10.1 Credit and Security Agreement, dated as of August 19,
1998, among the Company, Thomaston Mills FSC, Inc.,
as Guarantor, and the Lenders named therein.
13.1 Quarterly Report to Shareholders dated October 3,
1998.
27.0 Financial Data Schedule (for SEC purposes only)
(b) The Company did not file any reports on Form 8-K during the
three months ended October 3, 1998.
<PAGE> 14
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Thomaston Mills, Inc.
/s/ Neil H. Hightower
---------------------------------
Neil H. Hightower
President and Chief
Date: November 16, 1998 Executive Officer
--------------------
/s/ A. William Ott
---------------------------------
A. William Ott
Treasurer and Chief
Date: November 16, 1998 Financial Officer
--------------------
<PAGE> 1
EXHIBIT 10.1
CREDIT AND SECURITY AGREEMENT
dated as of
AUGUST 19, 1998
among
THOMASTON MILLS, INC.,
as Borrower,
THOMASTON MILLS FSC, INC.,
as Subsidiary Guarantor
NATIONSBANK, N.A.
SUNTRUST BANK, ATLANTA
AND WACHOVIA BANK, N.A.
as Lenders
SUNTRUST BANK, ATLANTA,
as Administrative Agent
and Syndication Agent,
WACHOVIA BANK, N.A.,
as Special Issuer, Documentation Agent
and Collateral Agent
and
SUNTRUST EQUITABLE SECURITIES CORPORATION,
as Arranger and Lead Manager
<PAGE> 2
TABLE OF CONTENTS
CREDIT AGREEMENT
<TABLE>
<S> <C>
ARTICLE 1
DEFINITIONS..............................................................................................2
SECTION 1.01. Definitions............................................................................2
SECTION 1.02. Accounting Terms and Determinations...................................................28
SECTION 1.03. References............................................................................28
SECTION 1.04. Use of Defined Terms..................................................................29
SECTION 1.05. Terminology...........................................................................29
ARTICLE 2
THE CREDIT..............................................................................................30
SECTION 2.01. Commitments to Lend...................................................................30
SECTION 2.02. Method of Borrowing...................................................................35
SECTION 2.03. Notes.................................................................................36
SECTION 2.04. Maturity of Loans.....................................................................37
SECTION 2.05. Interest Rates........................................................................38
SECTION 2.06. Fees..................................................................................41
SECTION 2.07. Optional Termination or Reduction of Commitments......................................43
SECTION 2.08. Mandatory Reduction and Termination of Commitments....................................43
SECTION 2.09. Optional Prepayments..................................................................44
</TABLE>
(i)
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 2.10. Mandatory Prepayments.................................................................44
SECTION 2.11. General Provisions as to Payments.....................................................46
SECTION 2.12. Computation of Interest and Fees......................................................48
SECTION 2.13. All Loans to Constitute One Obligation................................................49
SECTION 2.14. Reimbursement Obligations Generally; Duties of Issuers................................49
SECTION 2.15. Participations in Certain Letter of Credit Obligations................................50
SECTION 2.16. Payment of Reimbursement Obligations..................................................51
SECTION 2.17. Indemnification and Exoneration in Respect of Letters of Credit.......................52
SECTION 2.18. Subsidiary Guaranty...................................................................53
ARTICLE 3
COLLATERAL..............................................................................................56
SECTION 3.01. Grant of Security Interest............................................................56
SECTION 3.02. Lockbox; Collateral Reserve Account...................................................56
SECTION 3.03. Further Assurances....................................................................57
ARTICLE 4
REPRESENTATIONS AND WARRANTIES..........................................................................57
SECTION 4.01. Corporate Existence and Power.........................................................57
SECTION 4.02. Corporate and Governmental Authorization; No Contravention............................58
SECTION 4.03. Binding Effect........................................................................58
SECTION 4.04. Financial Information.................................................................58
SECTION 4.05. No Litigation.........................................................................59
SECTION 4.06. Compliance with ERISA.................................................................59
SECTION 4.07. Compliance with Laws; Payment of Taxes................................................59
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 4.08. Force Majeure.........................................................................59
SECTION 4.09. Investment Company Act................................................................59
SECTION 4.10. Public Utility Holding Company Act....................................................59
SECTION 4.11. Ownership of Property; Liens..........................................................60
SECTION 4.12. No Default............................................................................60
SECTION 4.13. Full Disclosure.......................................................................60
SECTION 4.14. Environmental Matters.................................................................60
SECTION 4.15. Capital Stock.........................................................................60
SECTION 4.16. Margin Stock..........................................................................61
SECTION 4.17. Insolvency............................................................................61
SECTION 4.18. Insurance.............................................................................61
SECTION 4.19. Possession of Permits.................................................................61
SECTION 4.20. Labor Disputes........................................................................62
SECTION 4.21. Surety Obligations....................................................................62
SECTION 4.22. Restrictions..........................................................................62
SECTION 4.23. Leases................................................................................62
SECTION 4.24. Trade Relations.......................................................................62
SECTION 4.25. Capital Structure.....................................................................62
SECTION 4.26. Y2K Plan..............................................................................63
SECTION 4.27. Federal Taxpayer Identification Number................................................63
SECTION 4.28. Bona Fide Accounts....................................................................63
SECTION 4.29. Good Title to Collateral..............................................................63
SECTION 4.30. Right to Assign and Grant Security Interest...........................................63
</TABLE>
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<TABLE>
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SECTION 4.31. Trade Styles..........................................................................63
SECTION 4.32. Account Debtor Capacity and Solvency..................................................64
SECTION 4.33. Proceedings with Respect to Accounts..................................................64
SECTION 4.34. Location of Collateral................................................................64
SECTION 4.35. Material Contracts....................................................................64
SECTION 4.36. Survival of Representations and Warranties............................................64
ARTICLE 5
COVENANTS...............................................................................................64
SECTION 5.01. Information...........................................................................64
SECTION 5.02. Inspection of Property, Books and Records.............................................67
SECTION 5.03. Maintenance of Existence and Management...............................................68
SECTION 5.04. Dissolution...........................................................................68
SECTION 5.05. Consolidations, Mergers and Sales of Assets...........................................68
SECTION 5.06. Use of Proceeds.......................................................................69
SECTION 5.07. Compliance with Laws; Payment of Taxes................................................69
SECTION 5.08. Insurance; Net Casualty/Insurance Proceeds............................................69
SECTION 5.09. Change in Fiscal Year.................................................................70
SECTION 5.10. Maintenance of Property...............................................................70
SECTION 5.11. Material Contracts....................................................................70
SECTION 5.12. Environmental Matters.................................................................70
SECTION 5.13. Environmental Release.................................................................71
SECTION 5.14. Transactions with Affiliates..........................................................71
SECTION 5.15. No Other Subsidiaries.................................................................71
</TABLE>
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<TABLE>
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SECTION 5.16. Restricted Payments...................................................................71
SECTION 5.17. Investments...........................................................................71
SECTION 5.18. Permitted Liens.......................................................................72
SECTION 5.19. Restrictions on Ability of Borrower and Subsidiaries to Pay Dividends.................73
SECTION 5.21. Minimum Consolidated EBITDA...........................................................73
SECTION 5.22. Funded Debt/EBITDA Ratio..............................................................74
SECTION 5.23. Leverage Ratio........................................................................74
SECTION 5.24. Minimum Consolidated Tangible Net Worth...............................................74
SECTION 5.25. Permitted Debt........................................................................74
SECTION 5.26. Limitation on Issuance and Sale of Capital Stock of Subsidiaries......................75
SECTION 5.27. Change of Principal Place of Business or Location of Collateral.......................75
SECTION 5.28. Physical Inventories..................................................................75
SECTION 5.29. Inventory Returns.....................................................................76
SECTION 5.30. Preservation of Intangibles Collateral................................................76
SECTION 5.31. Records Respecting Collateral.........................................................76
SECTION 5.32. Reports Respecting Collateral.........................................................76
SECTION 5.33. Collateral Location Waivers...........................................................77
SECTION 5.34. Updates to Appraisals.................................................................77
SECTION 5.35. Payment of Taxes On and Use of Collateral.............................................77
SECTION 5.36. Dispositions of Equipment Collateral..................................................77
SECTION 5.37. Changes to Taxpayer Identification Number.............................................78
SECTION 5.38. Discounts and Allowances..............................................................78
SECTION 5.39. Taxes Owing with Respect to Accounts..................................................78
</TABLE>
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<TABLE>
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SECTION 5.40. Capital Expenditures and Operating Leases.............................................78
SECTION 5.41. Consultants...........................................................................78
ARTICLE 6
DEFAULTS................................................................................................79
SECTION 6.01. Events of Default.....................................................................79
SECTION 6.02. Notice of Default.....................................................................82
SECTION 6.03. Remedies with Respect to Collateral...................................................82
SECTION 6.04. Power of Attorney.....................................................................84
ARTICLE 7
THE AGENTS AND THE LENDERS..............................................................................84
SECTION 7.01. Appointment; Powers and Immunities....................................................84
SECTION 7.02. Reliance by Agents....................................................................86
SECTION 7.03. Defaults..............................................................................86
SECTION 7.04. Rights of Each Agent and its Affiliates as a Lender...................................86
SECTION 7.05. Indemnification.......................................................................86
SECTION 7.06. Payee of Note Treated as Owner........................................................87
SECTION 7.07. Nonreliance on Agents, Issuers or Other Lenders.......................................87
SECTION 7.08. Failure to Act........................................................................87
SECTION 7.09. Resignation of Agent..................................................................88
SECTION 7.10. Joinder of Lenders....................................................................88
SECTION 7.11. Agreements Regarding Collateral.......................................................88
SECTION 7.12. Agent Field Audits....................................................................89
SECTION 7.13. Designation of Co-Collateral Agent....................................................89
</TABLE>
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<TABLE>
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SECTION 7.14. Replacement of Certain Lenders............................ ...........................90
ARTICLE 8
CHANGE IN CIRCUMSTANCES; COMPENSATION...................................................................90
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair..............................90
SECTION 8.02. Illegality............................................................................91
SECTION 8.03. Increased Cost and Reduced Return.....................................................91
SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar Loans............................93
SECTION 8.05. Compensation..........................................................................93
ARTICLE 9
CONDITIONS TO BORROWINGS AND ISSUANCE OF LETTERS OF CREDIT..............................................94
SECTION 9.01. Conditions to Initial Borrowing and Issuance of any Letter of Credit..................94
SECTION 9.02. Conditions to All Borrowings and Issuances of Letters of Credit.......................96
ARTICLE 10
MISCELLANEOUS...........................................................................................97
SECTION 10.01. Notices...............................................................................97
SECTION 10.02. No Waivers............................................................................97
SECTION 10.03. Expenses; Documentary Taxes...........................................................97
SECTION 10.04. Indemnification.......................................................................98
SECTION 10.05. Setoff; Sharing of Setoffs............................................................98
SECTION 10.06. Amendments and Waivers................................................................99
SECTION 10.07. No Margin Stock Collateral...........................................................100
SECTION 10.08. Successors and Assigns...............................................................100
SECTION 10.09. Confidentiality......................................................................102
</TABLE>
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SECTION 10.10. Representation by Lenders...........................................................103
SECTION 10.11. Obligations Several.................................................................103
SECTION 10.12. Georgia Law.........................................................................103
SECTION 10.13. Severability........................................................................103
SECTION 10.14. Interest............................................................................103
SECTION 10.15. Interpretation......................................................................104
SECTION 10.16. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION.......................................105
SECTION 10.17. Counterparts........................................................................105
SECTION 10.18. Source of Funds -- ERISA............................................................105
SECTION 10.19. Credit Inquiries....................................................................105
SECTION 10.20. Consequential Damages...............................................................105
SECTION 10.21. Entire Agreement....................................................................105
SECTION 10.22. Continuing Effect...................................................................106
</TABLE>
EXHIBITS:
<TABLE>
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EXHIBIT A-1 - Form of Revolving Loan Note
EXHIBIT A-2 - Form of Term Loan Note
EXHIBIT B - Form of Borrower's Opinion
EXHIBIT C - Form of Agent's Opinion
EXHIBIT D - Form of Assignment and Acceptance
EXHIBIT E - Form of Notice of Borrowing
EXHIBIT F - Form of Borrowing Base Certificate
EXHIBIT G - Form of Compliance Certificate
EXHIBIT H - Form of Closing Certificate
EXHIBIT I - Form of Officer's Certificate
EXHIBIT J - Form of Waiver and Agreement
EXHIBIT K - Form of Telephone Instruction Letter
EXHIBIT L - Form of Commercial Letter of Credit Request
EXHIBIT M - Form of Collateral Disclosure Certificate
EXHIBIT N - Form of Pledge Agreement
EXHIBIT O - Form of Negative Pledge Agreement
EXHIBIT P-1 - Form of In-Line Standby Letter of Credit Request
EXHIBIT P-2 - Form of Notice of In-Line Standby Letter of Credit
</TABLE>
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SCHEDULES:
<TABLE>
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SCHEDULE 2.01(b) - Existing In-Line Standby Letters of Credit
SCHEDULE 2.01(f) - Existing Commercial Letters of Credit
SCHEDULE 4.05 - Litigation
SCHEDULE 4.14 - Environmental Matters
SCHEDULE 4.20 - Labor Disputes
SCHEDULE 4.21 - Surety Obligations
SCHEDULE 4.22 - Restrictions
SCHEDULE 4.23 - Leases
SCHEDULE 4.25 - Capital Structure
SCHEDULE 4.35 - Material Contracts
SCHEDULE 5.14 - Transactions With Affiliates
SCHEDULE 5.25 - Existing Debt
</TABLE>
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<PAGE> 11
CREDIT AND SECURITY AGREEMENT
Preamble. THIS CREDIT AND SECURITY AGREEMENT (hereinafter, together with all
schedules and exhibits hereto, and any supplements, additions, modifications or
amendments thereto made from time to time called this "Agreement"), dated as of
August 19, 1998 (the "Closing Date"), is made by and among THOMASTON MILLS,
INC., a Georgia corporation (hereinafter, together with its successors and
permitted assigns called the "Borrower"); THOMASTON MILLS FSC, INC., a U.S.
Virgin islands corporation (hereafter, together with its successors and
permitted assigns, called "FSC"); NATIONSBANK, N.A., a national banking
association (hereinafter, together with its successors and permitted assigns,
called "NationsBank"; NationsBank, together with SunTrust and Wachovia, each as
hereinafter defined, called collectively, the "Lenders" and, individually, a
"Lender"); SUNTRUST BANK, ATLANTA, a Georgia banking corporation (hereinafter,
together with its successors and permitted assigns, called "SunTrust"),
individually and as "Administrative Agent" and "Syndication Agent" (as those
terms are hereinafter defined), on behalf of the Lenders; WACHOVIA BANK, N.A.,
a national banking association (hereinafter, together with its successors and
permitted assigns, called "Wachovia"), as "Special Issuer," "Documentation
Agent" and "Collateral Agent" (as those terms are hereinafter defined), on
behalf of the Lenders; and SUNTRUST EQUITABLE SECURITIES CORPORATION, a
Tennessee corporation (hereinafter, together with its successors and permitted
assigns called "SunTrust Equitable Securities"), as "Arranger" and "Lead
Manager" (as those terms are hereinafter defined), on behalf of the Lenders.
The Borrower and the Lenders, together with SunTrust, as
agent for the Lenders, are parties to a certain Amended and Restated Revolving
Credit and Term Loan Agreement, dated as of November 5, 1993 (which, as amended
or modified to the Closing Date is called herein the "Prior Loan Agreement")
pursuant to which the Lenders agreed to extend credit and other financial
accommodations to the Borrower. The Lenders and the Borrower have agreed to
supersede and replace the Prior Loan Agreement with this Agreement pursuant to
which all loans and other financial accommodations arising under the Prior Loan
Agreement will be refinanced, certain additional loans and financial
accommodations heretofore made by the Lenders, individually, will be either
refinanced or retired, FSC and each other Subsidiary will be added as parties,
and security interests will be granted by the Borrower and each such Subsidiary
in all, or substantially all, of its assets and properties (excluding real
estate) to secure all debts and liabilities arising from the foregoing.
NOW, THEREFORE, in consideration of the foregoing premises,
the mutual covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, the parties hereto, each intending to be legally bound, hereby
agree as follows:
<PAGE> 12
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this
SECTION 1.01 shall, for all purposes of this Agreement and any amendment hereto
(except as herein otherwise expressly provided), have the meanings set forth
herein:
"Accounts Receivable Collateral" means and includes all
accounts, instruments, and chattel paper, including, without limitation, all
rights of an Obligor to payment for goods sold or leased, or to be sold or to
be leased, or for services rendered or to be rendered, howsoever evidenced or
incurred, and together with all returned or repossessed goods and all books,
records, computer tapes, programs and ledger books arising therefrom or
relating thereto, all whether now owned or hereafter acquired or arising.
"Account Debtor" means the Person who is obligated on any of
the Accounts Receivable Collateral or otherwise is obligated as a purchaser or
lessee of any of the Inventory Collateral.
"Adjusted London Interbank Offered Rate" has the meaning set
forth in SECTION 2.05(c).
"Administrative Agent" means SunTrust, acting in such
capacity hereunder.
"Affected Lender" has the meaning set forth in SECTION 7.14.
"Affiliate" of any relevant Person means (i) any Person that
directly, or indirectly through one or more intermediaries, controls the
relevant Person (a "Controlling Person"), (ii) any Person (other than the
relevant Person or a Subsidiary of the relevant Person) which is controlled by
or is under common control with a Controlling Person, or (iii) any Person
(other than a Subsidiary of the relevant Person) of which the relevant Person
owns, directly or indirectly, five percent (5%) or more of the common stock or
equivalent equity interests. As used herein, the term "control" means
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agents" means, collectively, the Administrative Agent, the
Documentation Agent, the Syndication Agent, the Collateral Agent, the Lead
Manager and the Arranger. "Agent" shall refer, individually, thereto.
"Agents' Letter Agreement" means, individually and
collectively, that certain letter agreement (or each such letter agreement, if
there is more than one), dated as of the Closing Date, between the Borrower and
the Agents (or an Agent) relating to the structure of the credit facilities
provided for under this Agreement, and certain fees from time to time payable by
the Borrower to the Agents (or such Agent), together with all amendments and
supplements thereto.
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"Aggregate Real Properties" has the meaning given to such
term in SECTION 4.14.
"Aggregate Revolving Loan Commitments" means the sum of all
the Revolving Loan Commitments which, as of the Closing Date, equals Forty-Five
Million Dollars ($45,000,000).
"Aggregate Revolving Loan Amount Outstanding" means at any
time the sum of the aggregate principal amount outstanding under the Revolving
Loans.
"Agreement" has the meaning given to such term in the
Preamble to this Agreement.
"Applicable Margin" has the meaning set forth in SECTION
2.05(a).
"Arranger" means SunTrust Equitable Securities, acting in
such capacity hereunder.
"Assignee" has the meaning set forth in SECTION 10.08(c).
"Assignment and Acceptance" means an Assignment and
Acceptance executed in accordance with SECTION 10.08(c) in the form attached
hereto as EXHIBIT D.
"Authority" has the meaning set forth in SECTION 8.02.
"Balances Collateral" means all property of each Obligor left
with any Agent, any Issuer or any Lender or in the possession, custody or
control now or hereafter of any Agent, any Issuer or any Lender, all deposit
accounts of each Obligor now or hereafter opened with any Agent, any Issuer or
any Lender, all certificates of deposit issued by any Agent, any Issuer or any
Lender to an Obligor, and all drafts, checks and other items deposited in or
with any Agent, any Issuer or any Lender by any Obligor for collection now or
hereafter, including, without limitation, all such items described in SECTION
10.05.
"Bankruptcy Code" means Title 11 of the United States Code,
as it may be amended from time to time.
"Base Rate" means for any Base Rate Loan for any day, the
rate per annum equal to the higher as of such day of (i) the Prime Rate, or
(ii) one-half of one percent (1/2%) above the Federal Funds Rate. For purposes
of determining the Base Rate for any day, changes in the Prime Rate or the
Federal Funds Rate shall be effective on the date of each such change.
"Base Rate Loan" means a Loan which bears (or is to bear)
interest at a rate based upon the Base Rate, and is to be made as a Base Rate
Loan pursuant to the applicable Notice of Borrowing, SECTION 2.02(f), or
ARTICLE 8, as applicable.
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<PAGE> 14
"Borrower" has the meaning given to such term in the Preamble
to this Agreement.
"Borrowing" means a borrowing hereunder consisting of Loans
and Refunding Loans made to the Borrower at the same time by all of the
Lenders, in the case of a Revolving Loan Borrowing or a Term Loan Borrowing, in
each case pursuant to ARTICLE 2. A Borrowing is a "Revolving Loan Borrowing" if
such Loans are Revolving Loans, a "Term Loan Borrowing" if such Loans are Term
Loans, a "Syndicated Borrowing" if such Loans are Syndicated Loans, a
"Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans, and a "Base Rate
Borrowing" if such Loans are Base Rate Loans.
"Borrowing Base" means the following sum:
(i) an amount equal to eighty-five percent (85%) of the
dollar value of Eligible Accounts as of the date of determination;
plus
(ii) an amount equal to fifty percent (50%) of the dollar
value of the Eligible Inventory consisting of finished goods, valued
at the lower of cost (on a first-in, first-out basis) or market value,
as of the date of determination; plus
(iii) an amount equal to seventy percent (70%) of the
dollar value of the Eligible Inventory consisting of raw baled cotton,
valued at the lower of cost (on a first-in, first-out basis) or market
value, as of the date of determination; plus
(iv) an amount equal to fifty percent (50%) of the dollar
value of the Eligible Inventory consisting of raw materials (including
purchased greige fabric), other than raw baled cotton, valued at the
lower of cost (on a first-in, first-out basis) or market value, as of
the date of determination; plus
(v) an amount equal to thirty percent (30%) of the
dollar value of Eligible Inventory consisting of work in process
inventory (not stored with processors) constituting full bolts of
finished roll stock available to sew, valued at the lower of cost (on a
first-in, first-out basis) or market value, as of the date of
determination; plus
(vi) an amount equal to thirty percent (30%) of the dollar
value of Eligible Inventory consisting of work in process inventory
(not stored with processors) constituting set assemblies for open
stock singles and set assemblies for open stock sets, valued at the
lower of cost (on a first-in, first-out basis) or market value, as of
the date of determination; plus
(vii) an amount equal to fifty percent (50%) of the dollar
value of Eligible Inventory consisting of work in process inventory
(not stored with processors) constituting greige sheeting stored at
finishing, valued at the lower of cost (on a first-in, first-out
basis) or market value, as of the date of determination; plus
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<PAGE> 15
(viii) an amount equal to thirty percent (30%) of the dollar
value of Eligible Inventory consisting of work in process inventory
constituting greige sheeting stored with processors, valued at the
lower of cost (on a first-in, first-out basis) or market value, as at
the date of determination; minus
(ix) reserves in the aggregate amount of all Letter of
Credit Obligations in respect of Commercial Letters of Credit
outstanding from time to time; minus
(x) a fixed and continuing reserve in the amount of Ten
Million Dollars ($10,000,000), as such reserve may be reduced from
time to time by the Collateral Agent, subject to the approval or at
the direction of the Required Lenders; minus
(xi) reserves in the aggregate amount of all Third Party
Claims, or such lesser amount as the Collateral Agent may, either in
its discretion or at the direction of the Required Lenders, establish
from time to time, unless and except to the extent that a Third Party
has executed and delivered to the Collateral Agent a Waiver Agreement;
minus
(xii) the aggregate amount of any Special Reserves; minus
(xiii) such other reserves as the Collateral Agent may, or
at the direction of the Required Lenders will, establish from time to
time by written notice to the Borrower and the Lenders.
"Borrowing Base Certificate" means a certificate in the form
attached hereto as EXHIBIT F.
"Capital Stock" means any nonredeemable capital stock of the
Borrower or any Subsidiary (to the extent issued to a Person other than the
Borrower), whether common or preferred.
"Casualty" means any act or occurrence of any kind or nature
that results in damage, loss or destruction to any Collateral.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. ss. 9601 et seq. and its implementing
regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Certified Public Accountants" means the Borrower's certified
public accountants as of the Closing Date or such other firm of nationally
recognized independent certified public accountants which may be retained by
the Borrower hereafter for the purpose of auditing its financial statements.
"Change of Law" has the meaning set forth in SECTION 8.02.
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<PAGE> 16
"Closing Certificate" has the meaning set forth in SECTION
9.01(e).
"Closing Date" has the meaning given to such term in the
Preamble to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended,
or any successor federal tax code.
"Collateral" means (i) the assets and properties of the
Obligors in which the Collateral Agent, for the benefit of the Lenders, is
granted a security interest pursuant to SECTION 3.01, and (ii) the Pledged
Stock pledged to the Collateral Agent pursuant to the Pledge Agreement.
"Collateral Agent" means Wachovia, acting in such capacity
hereunder.
"Collateral Disclosure Certificate" means the Collateral
Disclosure Certificate, dated as of the Closing Date, substantially in the form
of EXHIBIT M, executed by the Borrower on behalf of each Obligor and containing
disclosure of information pertaining to the Collateral.
"Collateral Locations" means the respective chief executive
office of the Borrower and each other Obligor and those additional locations,
if any, of the Borrower and each other Obligor set forth and described in the
Collateral Disclosure Certificate.
"Collateral Reserve Account" means each non-interest bearing,
demand deposit account which the Borrower is required to open and maintain with
the Collateral Agent or a Lender for the benefit of the Collateral Agent
pursuant to the requirements of SECTION 3.02.
"Commercial Letter of Credit Commitment" means, (i) with
respect to Wachovia only, the amount set forth as its "Commercial Letter of
Credit Commitment" opposite its name on its signature page to this Agreement,
and (ii) as to any Lender which enters into any Assignment and Acceptance with
Wachovia or an Assignee of Wachovia hereafter, the amount of such Lender's
Commercial Letter of Credit Commitment after giving effect to such Assignment
and Acceptance.
"Commercial Letters of Credit" means Letters of Credit issued
by the Special Issuer for the account of the Borrower pursuant to SECTION
2.01(f).
"Commitment" means a Revolving Loan Commitment, a Term Loan
Commitment, a Pike Facility Bonds Standby Letter of Credit Commitment, the
Prudential Notes Standby Letter of Credit Commitment and the Commercial Letter
of Credit Commitment; and "Commitments" shall refer, collectively, to the
foregoing.
"Compliance Certificate" has the meaning set forth in
SECTION 5.01(c).
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<PAGE> 17
"Condemnation" means any taking of title, of use, or of any
other property interest under the exercise of the power of eminent domain,
whether temporarily or permanently, by any governmental authority or by any
Person acting under governmental authority.
"Condemnation Awards" means any and all judgments, awards of
damages (including, but not limited to, severance and consequential damages),
payments, proceeds, settlements, amounts paid for a taking in lieu of
Condemnation, or other compensation heretofore or hereafter made, including
interest thereon, and the right to receive the same, as a result of, or in
connection with, any Condemnation or threatened Condemnation.
"Consolidated Debt" means, at any date, the Debt of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis
in accordance with GAAP as of such date.
"Consolidated EBITDA" means the sum of the following,
calculated on a consolidated basis in accordance with GAAP for the Borrower and
its Consolidated Subsidiaries, for the relevant fiscal period: (i) Consolidated
Net Income; plus (ii) depreciation and amortization expense; plus (iii)
Consolidated Interest Expense; plus (iv) income tax expense included in
determining Consolidated Net Income.
"Consolidated EBITDAR" means the sum of the following,
calculated on a consolidated basis in accordance with GAAP for the Borrower and
its Consolidated Subsidiaries, for the relevant fiscal period: (i) Consolidated
EBITDA; plus (ii) all payment obligations of the Borrower and its Consolidated
Subsidiaries under all operating leases and operating rental agreements (other
than between or among the Borrower and its Consolidated Subsidiaries); minus
(iii) the aggregate amount of all capital expenditures of the Borrower and its
Consolidated Subsidiaries not financed by Purchase Money Liens.
"Consolidated Excess Cash Flow" means for any period, (i)
Consolidated Net Income for such period; plus (ii) to the extent deducted (or
minus to the extent included) in determining such Consolidated Net Income for
such period, non-cash items of income and expense (including, without
limitation, depreciation, amortization, deferred tax expense and other similar
non-cash charges); minus (iii) any gain (or plus any loss) from asset sales to
the extent included (or deducted) in determining Consolidated Net Income for
such period; minus (iv) capital expenditures made in such period; minus (v) any
increase in the average of the Net Working Investment at the end of each Fiscal
Quarter ended during such period, when compared with the average of the Net
Working Investment at the end of each Fiscal Quarter during the corresponding
period immediately prior thereto; minus (vi) all principal payments scheduled
to be made during such period on the Term Loans and the Prudential Notes.
"Consolidated Fixed Charges" means the sum of the following,
calculated on a consolidated basis in accordance with GAAP for the Borrower and
its Consolidated Subsidiaries: (i) Consolidated Interest Expense for the
relevant fiscal period, plus (ii) all payment obligations of the Borrower and
its Consolidated Subsidiaries for such period under all operating leases and
operating rental agreements (other than between or among the Borrower and its
Consolidated Subsidiaries), plus (iii) the current portion of long term Debt
outstanding as of the last day of the
-7-
<PAGE> 18
relevant fiscal period coming due in the next twelve (12) months as reflected on
the Borrower's and its Consolidated Subsidiaries' most recent quarterly
financial statements submitted to the Lenders pursuant to SECTION 5.01(b), plus
(iv) the aggregate amount of all Restricted Payments paid in the relevant fiscal
period.
"Consolidated Funded Debt" means, at any date, the Funded
Debt of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any relevant
fiscal period, interest, whether expensed or capitalized, in respect of Debt of
the Borrower or any of its Consolidated Subsidiaries outstanding during such
period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Liabilities" means the sum of (i) all
liabilities that, in accordance with GAAP, should be classified as liabilities
on a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries, and (ii) to the extent not included in clause (i) of this
definition, all Redeemable Preferred Stock of the Borrower and its Consolidated
Subsidiaries.
"Consolidated Net Income" means, for any relevant fiscal
period, the Net Income of the Borrower and its Consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP, but excluding
extraordinary items.
"Consolidated Subsidiary" means, at any date, any Subsidiary
or other entity the accounts of which, in accordance with GAAP, should be
consolidated with those of the Borrower in its consolidated financial
statements as of such date.
"Consolidated Tangible Net Worth" means, at any time,
Stockholders' Equity, less the sum of the value, as set forth or reflected on
the most recent consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries, prepared in accordance with GAAP, of: (A) any surplus resulting
from any write-up of assets subsequent to its Fiscal Year ended June 28, 1997;
(B) all assets which would be treated as intangible assets for balance sheet
presentation purposes under GAAP, including without limitation goodwill
(whether representing the excess of cost over book value of assets acquired, or
otherwise), trademarks, trade names, copyrights, patents and technologies,
unamortized debt discount and expense and unamortized capitalized startup
costs; (C) to the extent not included in clause (B) of this definition, any
amount at which shares of Capital Stock of the Borrower appear as an asset on
the balance sheet of the Borrower and its Consolidated Subsidiaries; (D) loans
or advances to stockholders, directors, officers or employees; (E) to the
extent not included in (B) of this definition, deferred expenses (excluding,
however, deferred taxes); and (F) Affiliate and shareholder loans of the
Borrower.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under section 414 of the Code.
"Credit Documents" means this Agreement, the Notes, the
Security Documents, the Collateral Disclosure Certificate, any other
certificate agreement, document or instrument
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evidencing, relating to or securing the Obligations, and any other agreement,
document or instrument delivered from time to time in connection with this
Agreement, the Notes, the Security Documents or the Obligations, as such
agreements, documents and instruments may be amended or supplemented from time
to time.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all payment
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable and
accrued expenses arising in the ordinary course of business, (iv) all
obligations of such Person as lessee under capital leases or leases for which
such Person retains tax ownership of the property subject to a lease, (v) all
obligations of such Person to reimburse any bank or other Person in respect of
amounts payable under a banker's acceptance, (vi) all Redeemable Preferred Stock
of such Person (in the event such Person is a corporation), (vii) all
obligations of such Person to reimburse any bank or other Person in respect of
amounts paid or undrawn amounts available to be paid under a letter of credit or
similar instrument, (viii) all Debt of others secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by such Person, (ix) all
obligations of such Person with respect to interest rate protection agreements,
foreign currency exchange agreements or other hedging arrangements, other than
commodity hedging agreements entered into by such Person as risk protection
rather than as an investment (each valued as the termination value thereof
computed in accordance with a method approved by the International Swap Dealers
Association and agreed to by such Person in the applicable agreement, if any),
and (x) all Debt of others Guaranteed by such Person.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Loan or other
Obligation, on any day, the higher of (i) the sum of three percent (3%) plus
the then highest interest rate (including the Applicable Margin) which may be
applicable to such Loan or other Obligation hereunder (irrespective of whether
any such type of Loans or other Obligations are actually outstanding hereunder)
or (ii) the sum of three percent (3%) plus the Base Rate.
"Documentation Agent" means Wachovia, acting in such capacity
hereunder.
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in the State of Georgia are
authorized by law to close.
"Eligible Accounts" means that portion of the Accounts
Receivable Collateral of each Obligor consisting of trade accounts receivable
actually owing to such Obligor by its Account Debtors subject to no
counterclaim, defense, setoff or deduction, provided, in each of the foregoing
cases, that such Accounts Receivable Collateral is at all times subject to a
duly
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<PAGE> 20
perfected, first priority security interest in favor of the Collateral Agent,
subject only to any Permitted Encumbrances excluding, however, in any event, any
such account:
(i) with respect to which any portion thereof is more
than sixty (60) days past due or more than ninety (90) days past
invoice date;
(ii) which is owing by any Subsidiary or other Affiliate
of an Obligor;
(iii) which is owing by any Account Debtor having
twenty-five percent (25%) or more in face value of its then existing
accounts with the Obligor more than sixty (60) days past due;
(iv) the assignment of which is subject to any
requirements set forth in the Assignment of Claims Act;
(v) which is owing by any Account Debtor whose accounts,
in face amount, with the Obligors exceed ten percent (10%) of such
Borrower's Eligible Accounts, but only to the extent of such excess;
(vi) which is owed by, billed to, or will be paid by an
Account Debtor not located in the United States or Canada (excluding
Quebec), unless such account is secured by a letter of credit that is
issued or confirmed by a bank acceptable to the Collateral Agent that
is in form and substance acceptable to the Collateral Agent and
payable in the full amount of the account in freely convertible U.S.
Dollars at a place of payment within the United States, and, if
requested by the Collateral Agent, such letter of credit, or amounts
payable thereunder, is collaterally assigned to the Collateral Agent;
(vii) which is subject to a "bill and hold" arrangement (as
to which the Account Debtor has been invoiced but the goods have not
yet been shipped), but only to the extent that the aggregate face
amount thereof, as to all Obligors, is in excess of Three Million
Dollars ($3,000,000) (or such lesser amount which the Collateral Agent
establishes either in its discretion or at the direction of the
Required Lenders, by written notice from time to time to the
Borrower);
(viii) which is owing by any Account Debtor which is the
subject (as debtor) of any voluntary or involuntary case or proceeding
under any bankruptcy, insolvency or other similar law or as to which a
trustee, receiver, liquidator, custodian or other similar official has
been appointed for it or for any substantial part of its property;
provided, however, that the post-petition accounts of any Account
Debtor which is then the subject (as debtor) of any Chapter 11
proceeding under the federal Bankruptcy Code shall be exempted from
the foregoing limitation, so long as such proceeding is continuing;
(ix) which arises from the sale of any Inventory
Collateral that is not Eligible Inventory pursuant to clause (iii) of
the proviso contained in the definition of "Eligible Inventory";
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(x) with respect to which the Collateral Agent determines
either in its discretion or at the direction of the Required Lenders,
that collection of such account is insecure, or that payment thereof
is doubtful or will be delayed by reason of such Account Debtor's
financial condition or that the prospect of payment or performance by
such Account Debtor is or will be impaired;
(xi) with respect to which the Account Debtor's executive
offices are located in the State of New Jersey, Minnesota, Indiana or
any other state imposing similar conditions to the right of a creditor
to collect accounts, unless (A) the Obligor in question has filed a
notice of business activities report, or such other similar report
required by such state, with the appropriate officials of such state
for the then current year, or (B) such Account Debtor has substantial
assets located, respectively, outside of the States of New Jersey,
Minnesota, Indiana or such other state, as the case may be;
(xii) which is owed by, billed to, or will be paid by an
Account Debtor located in the State of Alabama or any other state the
laws of which deny creditors access to its courts in the absence of
qualification to do business as a foreign corporation in such state or
in the absence of the filing of any required reports with such state,
unless the Obligor has qualified as a foreign corporation authorized
to do business in Alabama or such other state or has filed such
required reports;
(xiii) which is subject to any Lien other than a Permitted
Encumbrance;
(xiv) except as otherwise provided in clause (vii) above,
which arises from (A) the sale of goods which have not been delivered
and accepted by the Account Debtor, or (B) services which have not
been performed by the Obligor and accepted by the Account Debtor;
(xv) which is owing by any Account Debtor with respect to
which the Obligor in question has determined for any reason not to
continue selling goods to or performing services for on open account;
(xvi) which is evidenced by chattel paper or an instrument
of any kind, or has been reduced to judgment;
(xvii) with respect to which the Obligor in question has
made an agreement with the Account Debtor (A) for any deduction
therefrom, except for discounts or allowances which are made in the
ordinary course of business for prompt payment and which discounts or
allowances are reflected in the calculation of the face amount of each
invoice related to such Account, but only to the extent of such
deduction, or (B) to extend the time of payment thereof beyond the
period set forth in clause (i) in this definition;
(xviii) which arises from a retail sale of goods to a Person
who is purchasing the same primarily for personal, family or household
purposes; or
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<PAGE> 22
(xix) which the Collateral Agent determines either in its
discretion or at the direction of the Required Lenders, not to be
eligible for purposes hereof.
"Eligible Inventory" means the gross dollar value of
Inventory Collateral of each Obligor consisting of: (a) raw materials
(including purchased greige fabric); (b) work in process consisting of full
bolts of finished roll stock available to sew, set assemblies for open stock
singles and set assemblies for open stock sets and greige sheeting stored at
finishing; and (c) finished goods, subject to no further processing and held
for sale in the ordinary course of such Obligor's business to its customers and
not Affiliates of such Obligor; provided, however, in each of the foregoing
cases, that such Inventory Collateral:
(i) is at all times subject to a duly perfected, first
priority security interest in favor of the Collateral Agent, subject
only to any Permitted Encumbrances;
(ii) is in good and saleable condition;
(iii) is not on consignment from or subject to any
"guaranteed sale," "sale-or-return," "sale-on-approval" or repurchase
agreement with any supplier;
(iv) does not constitute returned goods in transit to
customers;
(v) does not constitute obsolete, repossessed,
discontinued, shopworn, damaged or slow-moving goods (it being
understood that, without limitation, any goods not sold within one (1)
year from date of manufacture or purchase shall be deemed "slow
moving"), or goods of substandard quality; e.g., "seconds";
(vi) conforms in all respects to the warranties and
representations with respect to Inventory Collateral set forth herein;
(vii) is not subject to a negotiable document of title
(unless issued or endorsed, and delivered to the Collateral Agent);
(viii) is not subject to any license or other agreement
that limits or restricts the Borrower's or the Collateral Agent's right
to sell or otherwise dispose of such inventory;
(ix) is located at a Collateral Location situated within
the United States or Canada (excluding Quebec) on premises owned by the
Borrower or with respect to which the Collateral Agent holds a Waiver
Agreement as to which the Borrower and each Third Party which is party
thereto is then in compliance; provided, however, that, only for a
period of not more than thirty (30) days after the Closing Date,
Inventory Collateral which otherwise constitutes Eligible Inventory
under this definition shall not be considered ineligible solely due to
Borrower's failure to comply with this clause (ix) in respect of one or
more Third Parties which are processors having greige sheeting in their
possession;
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<PAGE> 23
(x) meets all standards imposed by any governmental
agency or authority, including, without limitation, as to its
production, acquisition or importation;
(xi) is not produced in violation of the Fair Labor
Standards Act and is not subject to the "hot goods" provisions
contained in 29 U.S.C. ss. 215;
(xii) is located at a Collateral Location; and
(xiii) which the Collateral Agent has not determined, either
in its discretion or at the direction of the Required Lenders, to be
ineligible for purposes hereof.
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of the Borrower or any Subsidiary required by any
Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent, or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged noncompliance
with or liability under any Environmental Requirement, including without
limitation any complaints, citations, demands or requests from any Environmental
Authority or from any other person or entity for correction of any violation of
any Environmental Requirement or any investigations concerning any violation of
any Environmental Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA
or under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to the Borrower or
any Subsidiary or the Aggregate Real Properties, including but not limited to
any such requirement under CERCLA or similar state legislation and all federal,
state and local laws, ordinances, regulations, orders, writs, decrees and common
law.
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<PAGE> 24
"Equipment Collateral" means all equipment and fixtures of
each Obligor, whether now owned or hereafter acquired, wherever located,
including, without limitation, all machinery, furniture, furnishings, leasehold
improvements, computer equipment, books and records, motor vehicles, forklifts,
rolling stock, dies and tools used or useful in each Obligor's business
operations, excluding, however, any Excluded Equipment.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Loan" means a Loan which bears or is to bear
interest at a rate based upon the Adjusted London Interbank Offered Rate, and to
be made as a Euro-Dollar Loan pursuant to the applicable Notice of Borrowing.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
SECTION 2.05(c).
"Event of Default" has the meaning set forth in SECTION 6.01.
"Excess Borrowing Availability" means, at any time, the amount
(if any) by which the aggregate amount of the Borrowing Base exceeds the then
outstanding Working Capital Obligations.
"Excess Cash Flow Payments" means an amount equal to
seventy-five percent (75%) of Consolidated Excess Cash Flow as calculated from
the Borrower's annual audited consolidated financial statements, furnished to
the Lenders in accordance with SECTION 5.01(a); provided, however, in the event
that the Borrower fails to deliver such financial statements to the Lenders as
and when required, or the Administrative Agent determines in the exercise of its
good faith and reasonable discretion that such financial statements do not
accurately reflect the Borrower's consolidated financial position for the period
covered, the Administrative Agent may estimate, in its discretion, the amount of
Excess Cash Flow Payment for such period.
"Excluded Equipment" means (i) any equipment subject to a
Purchase Money Lien as to which the purchase money creditor holding such Lien
prohibits other Liens thereon without its prior consent, unless and until either
(A) such creditor grants such consent or (B) the Debt secured by such Lien has
been fully paid and satisfied; and (ii) any equipment with respect to which the
rights of possession and use of an Obligor are created pursuant to a lease which
does not create a security interest, unless and until such time (if any) as such
Obligor acquires title to such equipment from the lessor or the lessor abandons
its rights and claims thereto.
"Executive Office" means the chief executive office address of
the Borrower and each other Obligor designated as such in the Collateral
Disclosure Certificate.
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<PAGE> 25
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided, however, that (i) if the day
for which such rate is to be determined is not a Domestic Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Domestic Business Day as so published on the next succeeding
Domestic Business Day, and (ii) if such rate is not so published for any day,
the Federal Funds Rate for such day shall be the average rate charged to the
Administrative Agent on such day on such transactions, as determined in good
faith by the Administrative Agent.
"Fees" means, collectively, all fees and charges (excluding
interest) payable to the Agents, the Issuers and the Lenders pursuant hereto,
including, particularly, those set forth and described in SECTION 2.06.
"Fiscal Month" means any fiscal month of the Borrower and its
Consolidated Subsidiaries.
"Fiscal Quarter" means any fiscal quarter of the Borrower and
its Consolidated Subsidiaries.
"Fiscal Year" means any fiscal year of the Borrower and its
Consolidated Subsidiaries.
"Fixed Charge Coverage Ratio" means the ratio of Consolidated
EBITDAR to Consolidated Fixed Charges.
"ForEx Contract" means each "spot" or "forward" foreign
currency exchange agreement entered into from time to time between or among the
Borrower, any Subsidiary and any Lender.
"ForEx Obligations" means any and all settlement obligations,
fees, charges, liabilities and other obligations owed to any Lender under any
ForEx Contracts issued by it.
"FSC" has the meaning given to such term in the Preamble to
this Agreement.
"Funded Debt," for any Person, means: (i) all Debt of such
Person, other than Debt of the types described in clause (ix) of the definition
of "Debt"; and (ii) all accounts payable of such Person which are more than
sixty (60) days past due and not in dispute.
"Funded Debt/EBITDA Ratio" means the ratio of Consolidated
Funded Debt to Consolidated EBITDA, calculated as to Funded Debt as of the
Fiscal Quarter just ended and calculated as to Consolidated EBITDA for the
Fiscal Quarter just ended and the immediately preceding three (3) Fiscal
Quarters.
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<PAGE> 26
"GAAP" means generally accepted accounting principles in the
United States of America applied on a basis consistent with those which, in
accordance with SECTION 1.02, are to be used in making the calculations for
purposes of determining compliance with the terms of this Agreement.
"Guarantee" or "Guaranty," by any Person, means any
obligation, contingent or otherwise, of such Person directly or indirectly
guaranteeing any Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to secure, purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or other
obligation (whether arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or services, to provide
collateral security, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part), provided that the terms "Guarantee" and "Guaranty" shall not include
endorsements for collection or deposit in the ordinary course of business. The
terms "Guarantee" or "Guaranty", used as a verb, shall have corresponding
meanings.
"Guaranteed Obligations" has the meaning given to such term in
SECTION 2.17(a).
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss. 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or in
any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including, crude oil or any fraction thereof,
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976, or
in any applicable state or local law or regulation and (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"In-Line Standby Letters of Credit" shall mean Letters of
Credit issued by the Administrative Agent for the account of the Borrower or any
Subsidiary pursuant to SECTION 2.01(b).
"Intangibles Collateral" shall mean all general intangibles of
each Obligor, whether now existing or hereafter acquired or arising, including,
without limitation, all copyrights, royalties, tax refunds, rights to tax
refunds, trademarks, trade names, service marks, patent and proprietary rights,
blueprints, drawings, designs, trade secrets, plans, diagrams, schematics and
assembly and display materials relating thereto, all customer lists, all books
and records and all computer software and programs, and all goodwill of each
Obligor associated therewith.
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<PAGE> 27
"Interest Period" means: with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the first, second or third month thereafter, as
the Borrower may elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period (subject to paragraph (c) below)
which would otherwise end on a day which is not a Euro-Dollar Business
Day shall be extended to the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the appropriate subsequent
calendar month) shall, subject to paragraph (c) below, end on the last
Euro-Dollar Business Day of the appropriate subsequent calendar month;
and
(c) no Interest Period may be selected which begins
before the Termination Date and would otherwise end after the
Termination Date.
"Interest Rate Protection Agreement" means an interest rate
hedging or protection agreement entered into by and between the Borrower and any
of the Lenders, together with all exhibits, schedules, extensions, renewals,
amendments, substitutions and replacements thereto and thereof.
"Inventory Collateral" means all inventory of each Obligor,
whether now owned or hereafter acquired, wherever located, including, without
limitation, all goods of each Obligor held for sale or lease or furnished or to
be furnished under contracts of service, all goods held for display or
demonstration, goods on lease or consignment, spare parts, repair parts,
returned and repossessed goods, all raw materials, work-in-process, finished
goods and supplies used or consumed in such Obligor's business, together with
all documents, documents of title, dock warrants, dock receipts, warehouse
receipts, bills of lading or orders for the delivery of all, or any portion, of
the foregoing; provided, however, that "Inventory Collateral" shall not include
goods which are placed by the owner thereof on consignment with an Obligor in
compliance with Section 2-326 of the Uniform Commercial Code of the applicable
jurisdiction.
"Investment" means any investment in any Person, whether by
means of purchase or acquisition of obligations or securities of such Person
(including, without limitation, interest rate protection, foreign currency or
other hedging arrangements to be held by such Person as an investment), capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Issuer" means either the Administrative Agent or the Special
Issuer.
"Joint Venture" means any Person which is primarily engaged in
some aspect of the business of the Borrower or any Consolidated Subsidiary, or
in which any Borrower has
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<PAGE> 28
made an equity Investment: (i) which is not a Subsidiary, and (ii) in which such
Borrower owns twenty percent (20%) or more of the beneficial interests therein.
"Lead Manager" means SunTrust Equitable Securities, acting in
such capacity hereunder.
"Lender" or "Lenders" has the meaning given to such term in
the Preamble to this Agreement.
"Lending Office" means, as to each Lender, its office located
at its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such
Lender may hereafter designate as its Lending Office by notice to the Borrower
and the Administrative Agent.
"Letter of Credit" means an In-Line Standby Letter of Credit,
the Pike Facility Bond Standby Letter of Credit, the Prudential Notes Standby
Letter of Credit or a Commercial Letter of Credit.
"Letter of Credit Application Agreement" shall mean, with
respect to a Letter of Credit, such form of application therefor (whether in a
single or several documents and whether existing prior to on or after the
Closing Date) as an Issuer may employ in the ordinary course of business for its
own account, whether or not providing for collateral security, with such
modifications thereto as may by agreed upon by such Issuer and the Borrower and
are not materially adverse to the interests of the Lenders generally; provided,
however, that in the event of any conflict between the terms of any Letter of
Credit Application Agreement and the term of this Agreement, the terms of this
Agreement shall control.
"Letter of Credit Fees" means, collectively, Standard Letter
of Credit Fees and Special Letter of Credit Fees.
"Letter of Credit Obligations" shall mean, at any particular
time, in reference to any, or all Letters of Credit, as the case may be, the sum
of (a) the Reimbursement Obligations at such time, (b) the aggregate maximum
amount available for drawing under the Letters of Credit at such time and (c)
the aggregate maximum amount available for drawing under Letters of Credit the
issuance of which has been authorized by an Issuer but which have not yet been
issued.
"Leverage Ratio" means the ratio of Consolidated Liabilities
to Consolidated Tangible Net Worth.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest, encumbrance, or servitude of any kind in respect of such
asset to secure or assure payment of a Debt or a Guarantee, whether by
consensual agreement or by operation of statute or other law, or by any
agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, the Borrower or
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<PAGE> 29
any Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"Loan" means a Base Rate Loan, a Euro-Dollar Loan, a Revolving
Loan, a Term Loan, a Refunding Loan or a Syndicated Loan; and "Loans" means Base
Rate Loans, Euro-Dollar Loans, Revolving Loans, Term Loans, Refunding Loans and
Syndicated Loans, or any or all of them, as the context shall require.
"London Interbank Offered Rate" has the meaning set forth in
SECTION 2.05(c).
"Margin Stock" means "margin stock" as defined in Regulations
T, U or X.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination, or claim or contest by the Borrower demanding the same, in any
litigation, arbitration, or governmental investigation or proceeding), whether
singly or in conjunction with any other event or events, act or acts, condition
or conditions, occurrence or occurrences, whether or not related, a material
adverse change in, or a material adverse effect upon, any of (a) the financial
condition, operations, business, properties or prospects of the Borrower or any
Subsidiary, (b) the rights and remedies of the Agents, the Issuers or the
Lenders under the Credit Documents, the Collateral Agent's security interest and
Lien against the Collateral, or the ability of the Borrower, any Obligor or any
other Person obligated under a Guarantee of the Obligations to perform its
obligations with respect to the Obligations or under the Credit Documents to
which it is a party (including, without limitation, the repudiation, revocation
or any attempt to do the same by the Borrower or Person obligated under a
Guarantee of the Obligations), as applicable, or (c) the legality, validity or
enforceability of any Credit Document.
"Material Contract" means any contract, lease, instrument,
guaranty or license, or other arrangement (other than any of the Credit
Documents), whether written or oral, to which the Borrower or any of the
Subsidiaries is a party as to which the breach, nonperformance, cancellation or
failure to renew by any party thereto could have a Material Adverse Effect.
"Moody's" means Moody's Investor Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in
SECTION 4001(a)(3) of ERISA.
"NationsBank" shall have the meaning given to such term in the
Preamble to this Agreement.
"Negative Pledge Agreement" means the Negative Pledge
Agreement, in substantially the form of EXHIBIT O, made by the Borrower in favor
of the Collateral Agent in respect of its real property (and interests in real
property).
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"Net Cash Proceeds" means, in each case as set forth in a
statement in reasonable detail delivered by the Borrower to the Administrative
Agent:
(i) with respect to the disposition of assets by the
Borrower or any Subsidiary, the excess, if any, of (1) the cash
proceeds received in connection with such disposition over (2) the sum
of (A) the principal amount of any Debt (other than the Obligations)
which is secured by such asset and which is required to be repaid in
connection with the disposition thereof, plus (B) the reasonable
out-of-pocket expenses incurred by the Borrower or such Subsidiary, as
the case may be, in connection with such disposition, plus (C) so long
as no Event of Default is in existence, provision for taxes, including
income taxes, attributable to the disposition of such asset;
(ii) with respect to any cash proceeds received by the
Borrower or a Subsidiary in respect of the issuance of any Capital
Stock or the incurrence of any Debt for money borrowed (except Debt
secured by Purchase Money Liens), all such cash proceeds, after
deducting therefrom all reasonable and customary costs and expenses
incurred by the Borrower or Subsidiary directly in connection with the
issuance of such Capital Stock or the incurrence of such Debt for money
borrowed.
"Net Casualty/Insurance Proceeds", when used with respect to
any Condemnation Awards or insurance proceeds allocable to the Collateral, means
the gross proceeds from any Casualty or Condemnation remaining after payment of
all expenses (including attorneys' fees) incurred in the collection of such
gross proceeds.
"Net Income" means, as applied to any Person for any period,
the aggregate amount of net income of such Person, after taxes, for such period,
as determined in accordance with GAAP.
"Net Working Investment" means, at any date (i) the
consolidated current assets (excluding cash and cash equivalents) of the
Borrower and its Consolidated Subsidiaries, minus (ii) consolidated current
liabilities (excluding Debt) of the Borrower and its Consolidated Subsidiaries,
all determined in accordance with GAAP as of such date.
"Notes" means each of the Revolving Loan Notes and the Term
Loan Notes, or any or all of them, as the context shall require, together with
all amendments, consolidations, modifications, renewals, and supplements
thereto.
"Notice of Borrowing" has the meaning set forth in SECTION
2.02.
"Obligations" means all Debts, liabilities and obligations of
the Borrower and each Subsidiary Guarantor: (i) to the Agents or the Lenders,
incurred or arising from time to time under or pursuant to this Agreement and
each of the Credit Documents, including principal, interest, fees, costs and
indemnification amounts and any and all extensions or renewals thereof in whole
or in part; (ii) to the Issuers, all Letter of Credit Obligations; (iii) to any
Lender or Affiliate thereof, under any Interest Rate Protection Agreement with
such Lender or Affiliate (including, without limitation, any premature
termination or breakage costs); (iv) to any Lender
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or Affiliate thereof, under any ForEx Contract with such Lender or Affiliate;
and (v) to any Lender or Affiliate thereof, incurred or arising under or in
connection with any banking or related transactions, services or functions
performed for any Obligor in connection with the conduct of such Obligor's
business (including extensions of credit giving rise to any Debt not related to
this Agreement or any of the Credit Documents, the incurrence of which is
permitted hereunder or otherwise consented to in writing by the Required
Lenders).
"Obligors" means, collectively, the Borrower and each
Subsidiary Guarantor.
"Officer's Certificate" has the meaning set forth in SECTION
9.01(f).
"Operating Income" means, as applied to the Borrower and its
Consolidated Subsidiaries for any relevant fiscal period, their operating income
for such period, calculated in the same manner as used to calculate operating
income in Borrower's audited financial statements for the Fiscal Year ended June
28, 1997.
"Overadvance Loan" has the meaning set forth in SECTION
2.01(a).
"Participant" has the meaning set forth in SECTION 10.08(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set
forth in SECTION 2.05(a).
"Permitted Encumbrances" means the Liens and encumbrances set
forth and described in SECTION 5.18.
"Person" means an individual, a corporation, a limited
liability company, a partnership, an unincorporated association, a trust or any
other entity or organization, including, but not limited to, a government or
political subdivision or an agency or instrumentality thereof.
"Pike Facility Bonds" means the "$3,700,000 Development
Authority of Pike County Tax-Exempt Adjustable Mode Industrial Development
Revenue Bonds (Thomaston Mills, Inc. Project), Series 1995," heretofore issued
by The Development Authority of Pike County, Georgia, in connection with, and to
finance the expansion of, the Borrower's Pike County, Georgia manufacturing
facility.
"Pike Facility Bonds Standby Letter of Credit" means Letter of
Credit No. LC870-007344, heretofore issued by the Special Issuer in favor of
First-Citizens Bank & Trust Company, as trustee for the holders of the Pike
Facility Bonds, in the initial face amount of Three Million Eight Hundred
Eighty-Five Thousand Dollars ($3,885,000); together with any extensions or
renewals thereof, or amendments, supplements or additions thereto, whether now
or hereafter existing.
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"Pike Facility Bonds Standby Letter of Credit Commitment"
means, with respect to each Lender, (i) the amount set forth as its Pike
Facility Bonds Standby Letter of Credit of Commitment opposite the name of such
Lender on the signature pages hereof, and (ii) as to any Lender which enters
into any Assignment and Acceptance (whether as transferor Lender or as Assignee
thereunder), the amount of such Lender's Pike Facility Bonds Standby Letter of
Credit Commitment after giving effect to such Assignment and Acceptance.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under SECTION 412 of the Code and is either (i) maintained by a member
of the Controlled Group for employees of any member of the Controlled Group or
(ii) maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five (5) plan years made
contributions.
"Pledge Agreement" means the Pledge Agreement, dated as of the
Closing Date, substantially in the form of EXHIBIT N, executed by the Borrower
in favor of the Collateral Agent.
"Pledged Stock" means the capital stock of each Subsidiary of
the Borrower described in and pledged pursuant to the Pledge Agreement.
"Prior Loan Agreement" has the meaning given to such term in
the Preamble to this Agreement.
"Prime Rate" refers to that interest rate so denominated and
set by the Administrative Agent from time to time as an interest rate basis for
borrowings. The Prime Rate is but one of several interest rate bases used by the
Administrative Agent. The Administrative Agent lends at interest rates above and
below the Prime Rate.
"Prudential" means The Prudential Insurance Company of
America.
"Prudential Note Agreement" means the Note Agreement, dated as
of December 15, 1992, made between Prudential and the Borrower, as amended or
modified from time to time, in respect of the Prudential Notes.
"Prudential Notes" means the 7.94% Senior Notes due December
15, 2004, aggregating Fifteen Million Dollars ($15,000,000) in original
principal amount, issued to Prudential by the Borrower pursuant to the
Prudential Note Agreement.
"Prudential Notes Standby Letter of Credit" means the Letter
of Credit in the face amount of Thirteen Million Two Hundred Seven Thousand
Twenty-Seven Dollars ($13,207,027) issued by the Special Issuer for the account
of the Borrower to Prudential as beneficiary on the Closing Date in respect of
the Prudential Notes.
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"Prudential Notes Standby Letter of Credit Commitment" means,
(i) with respect to Wachovia only, the amount set forth as its "Prudential Notes
Standby Letter of Credit Commitment" opposite its name on its signature page to
this Agreement, and (ii) as to any Lender which enters into any Assignment and
Acceptance with Wachovia or an Assignee of Wachovia hereafter, the amount of
such Lender's Prudential Notes Standby Letter of Credit Commitment after giving
effect to such Assignment and Acceptance.
"Purchase Money Lien" means any Lien (including a negative
pledge arrangement) granted by the Borrower or any Subsidiary from time to time
to vendors or financiers of equipment to secure the payment of the purchase
price thereof so long as (i) such Liens extend only to the specific equipment so
purchased, (ii) secure only such deferred payment obligation and related
interest, fees and charges and no other Debt, and (iii) are promptly released
upon the payment in full of such purchase price and related interest, fees and
charges.
"Redeemable Preferred Stock" of any Person means any preferred
stock issued by such Person which is at any time prior to the Termination Date
either (i) mandatorily redeemable (by sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof.
"Refunding Loan" means a new Syndicated Loan made on the day
on which (i) an outstanding Syndicated Loan is maturing as a refinancing
thereof, or (ii) a Base Rate Borrowing is being converted to a Eurodollar
Borrowing, if and to the extent that the proceeds thereof are used entirely for
the purpose of refinancing such maturing Loan or Loan being converted, and
provided that the maturing Loan or Loan being converted is of the same type as
the new Loan (that is, both are Revolving Loans or Term Loans), excluding,
however, any difference between the amount of such maturing Loan or Loan being
converted and any greater amount being borrowed on such day and actually either
being made available to the Borrower pursuant to SECTION 2.02(c) or remitted to
the Administrative Agent as provided in SECTION 2.11, in each case as
contemplated in SECTION 2.02(d).
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Reimbursement Obligations" means the reimbursement or
repayment obligations of the Borrower to an Issuer arising with respect to any
and all Letters of Credit, including, without limitation, all contingent
liabilities in respect of Letters of Credit issued by not drawn upon and all
unpaid reimbursement liabilities in respect of Letters of Credit in which
drawings
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have been made, and all interest, fees, charges, indemnification amounts, costs
and expenses associated therewith.
"Reported Net Income" means, for any period, the Net Income of
the Borrower and its Consolidated Subsidiaries, determined on a consolidated
basis in accordance with GAAP.
"Required Lenders" means at any time Lenders having at least
fifty-one percent (51%) of the aggregate amount of the Commitments or, if the
Commitments are no longer in effect, Lenders holding at least fifty-one percent
(51%) of the aggregate outstanding principal amount of the sum of the Notes and
the Letter of Credit Obligations; provided, however, that such calculation shall
be made without including the Commitment of or principal amount of Notes held by
any Lender which is in default with respect to any of its obligations to the
Agents, the Issuers, the Borrower or any other Lender. As of the Closing Date,
the Lenders have the following percentages of the aggregate amount of the
Commitments: (i) SunTrust, thirty-seven and 28/100ths percent (37.28%); (ii)
Wachovia, forty-five and 66/100ths percent (45.66%); and (iii) NationsBank,
seventeen and 6/100ths percent (17.06%).
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's Capital Stock (except dividends
payable solely in shares of its Capital Stock), or (ii) any payment on account
of the purchase, redemption, retirement, defeasance, or other acquisition of or
sinking fund for (a) any shares of the Borrower's Capital Stock (except shares
acquired upon the conversion thereof into other shares of its Capital Stock), or
(b) any option, capital appreciation rights, stock appreciation rights, warrant
or other right to acquire shares of the Borrower's Capital Stock, or (iii) any
payment prior to the scheduled maturity of any Subordinated Debt or other Debt
(other than the Obligations) of the Borrower.
"Revolving Loan" means the revolving loans to be made by all
of the Lenders in accordance with SECTION 2.01(a).
"Revolving Loan Commitment" means, (i) (A) with respect to
SunTrust, Twenty Million Four Hundred Sixty-Six Thousand Dollars ($20,466,000),
initially (B) with respect to Wachovia, Fifteen Million One Hundred Sixty-Nine
Thousand Five Hundred Dollars ($15,169,500), initially and (C) with respect to
NationsBank, Nine Million Three Hundred Sixty- Four Thousand Five Hundred
Dollars ($9,364,500), initially; and (ii) as to any Lender which enters into any
Assignment and Acceptance (whether as transferor Lender or as Assignee
thereunder), the amount of such Lender's Revolving Commitment after giving
effect to such Assignment and Acceptance; in each case, as such amount may be
reduced from time to time pursuant to SECTIONS 2.07 and 2.08.
"Revolving Loan Commitment Percentage" means, for each Lender,
the percentage equal to its Revolving Loan Commitment divided by the Aggregate
Revolving Loan Commitments.
"Revolving Loan Notes" means the promissory notes of the
Borrower substantially in the form of EXHIBIT A-1, evidencing the obligation of
the Borrower to repay
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Revolving Loans, together with all amendments, consolidations, modifications,
renewals and supplements thereto.
"Security Documents" means the Pledge Agreement and the Waiver
Agreements.
"Senior Officer" of the Borrower shall mean any of the
following, regardless of title, the chief executive officer, the chief operating
officer or the chief financial officer of the Borrower.
"Shared Risk Letter of Credit Obligations" means Letter of
Credit Obligations arising in respect of the Pike Facility Bonds Standby Letter
of Credit and all In-Line Standby Letters of Credit.
"Special Issuer" means Wachovia, acting in its capacity as
issuer of the Prudential Notes Standby Letter of Credit, the Pike Facility Bonds
Standby Letter of Credit and all Commercial Letters of Credit.
"Special Letter of Credit Fees" has the meaning given to such
term in Section 2.06(e).
"Special Reserves" means, collectively:
(i) continuing reserves in respect of scheduled payments
of principal of and accrued interest on, the Prudential Notes in such
aggregate amount as the Collateral Agent may, either in its discretion
or at the direction of the Required Lenders, establish from time to
time; and/or
(ii) continuing reserves in respect of scheduled payments
of principal of, and accrued interest on, the Term Loan in such
aggregate amount as the Collateral Agent may, either in its discretion
or at the direction of the Required Lenders, establish from time to
time; and/or
(iii) reserves in respect of Net Cash Proceeds from the
disposition of Equipment Collateral which, in accordance with SECTION
5.36, have been used to reduce Revolving Loans then outstanding in
anticipation of ultimate reinvestment in new Equipment Collateral;
and/or
(iv) reserves in respect of cash dividends, declared by
Borrower but not yet paid, subject to the provisions of SECTION 5.16.
"Standard Letter of Credit Fees" has the meaning given to such
term in Section 2.06(d).
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
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"Stockholders' Equity" means, at any time, the shareholders'
equity of the Borrower and the Subsidiaries, as set forth or reflected on the
most recent consolidated balance sheet of the Borrower and the Subsidiaries
prepared in accordance with GAAP, but excluding any Redeemable Preferred Stock
of the Borrower or any of the Subsidiaries. "Shareholders' Equity" generally
would include, but not be limited to (i) the par or stated value of all
outstanding Capital Stock, (ii) capital surplus, (iii) retained earnings, and
(iv) various deductions such as (A) purchases of treasury stock, (B) valuation
allowances, (C) receivables due from an employee stock ownership plan, (D)
employee stock ownership plan debt guarantees, and (E) translation adjustments
for foreign currency transactions.
"Subordinated Debt" means any Debt, which is unsecured, of the
Borrower or any Subsidiary to any Person which, by written agreement, has been
subordinated in right of payment and claim, to the rights and claims of the
Agents, the Issuers, the Lenders in respect of the Obligations, on terms and
conditions reasonably satisfactory to the Required Lenders.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Borrower.
"Subsidiary Guarantor" means FSC, initially, and any other
Subsidiary which, in accordance with SECTION 5.15 executes a Joinder Agreement
and becomes a Subsidiary Guarantor subsequent to the Closing.
"SunTrust" has the meaning given to such term in the Preamble
to this Agreement.
"Syndicated Loans" means Revolving Loans or Term Loans, or
both, as the context shall require.
"Syndication Agent" means SunTrust, acting in such capacity
hereunder.
"Taxes" has the meaning set forth in SECTION 2.11(c).
"Term Loan" means the term loans to be made by all of the
Lenders in accordance with SECTION 2.01(c).
"Term Loan Commitment" means, (A) with respect to SunTrust,
Eight Million One Hundred Eighty-Six Thousand Four Hundred Dollars ($8,186,400),
(B) with respect to Wachovia, Six Million Sixty-Seven Thousand Eight Hundred
Dollars ($6,067,800), and (C) with respect to NationsBank, Three Million Seven
Hundred Forty-Five Thousand Eight Hundred Dollars ($3,745,800), aggregating
Eighteen Million Dollars ($18,000,000) in principal amount; provided, that after
the initial advance by each Lender of its Term Loan, and for the purposes of
making Refunding Loans of such Lender's initial Term Loan pursuant hereto, such
amount shall be reduced by the amount of all principal repayments and
prepayments which such Lender has received with respect to its Term Loan other
than as part of a Refunding Loan.
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"Term Loan Notes" means the promissory notes of the Borrowers,
substantially in the form of EXHIBIT A-2, evidencing the obligation of the
Borrowers to repay the Term Loans, together with all amendments, consolidations,
modifications, renewals and supplements thereto.
"Termination Date" means whichever is applicable of (i) that
date which constitutes the second anniversary of the Closing Date; (ii) the date
that the Commitments are terminated pursuant to SECTION 6.01 following the
occurrence of an Event of Default, or (iii) with respect to Revolving Loans, the
date that the Borrower terminates the Revolving Loan Commitments entirely
pursuant to SECTION 2.07.
"Test Ratio" has the meaning given to such term in SECTION
2.05(a).
"Third Party Claims" means claims of Third Parties against any
Obligor for rent, storage, maintenance, repair, processing, servicing or
bailment in respect of any Collateral or any property on which any Collateral is
or may be located.
"Third Parties" means landlords, warehousemen, servicers,
processors, bailees and other third parties which may, from time to time, be in
the possession or control of, any Collateral or any property on which any
Collateral is or may be located.
"Trade Styles" has the meaning set forth in SECTION 4.31.
"Transferee" has the meaning set forth in SECTION 10.08(d).
"UCC" shall mean the Uniform Commercial Code Secured
Transactions of Georgia (O.C.G.A. Art. 11-9), as in effect on the Closing Date.
"Unfunded Vested Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess
represents a potential liability of a member of the Controlled Group to the PBGC
or the Plan under Title IV of ERISA.
"Unused Revolving Loan Commitment" means at any date, (a) with
respect to all Lenders, an amount equal to the Aggregate Revolving Loan
Commitments, less the sum of (i) the Aggregate Revolving Loan Amount
Outstanding, and (ii) the aggregate outstanding Letter of Credit Obligations
pertaining to In-Line Standby Letters of Credit and (b) with respect to any
Lender, an amount equal to the aggregate Unused Revolving Loan Commitments
determined in clause (a) above multiplied by such Lender's pro rata share of all
Revolving Loan Commitments.
"Wachovia" has the meaning given to such term in the Preamble
to this Agreement.
"Waiver Agreement" means a Waiver and Agreement substantially
in the form of EXHIBIT J, with any changes as may be acceptable to the
Collateral Agent, in its discretion,
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executed and delivered by a Third Party waiving or subordinating all Third Party
Claims, and making certain other agreements in regard to the Collateral, all on
terms satisfactory to the Collateral Agent.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
"Working Capital Obligations" means the sum at any time of (i)
the Aggregate Revolving Loan Amount Outstanding and (ii) all Letter of Credit
Obligations in respect of all In-Line Standby Letters of Credit.
"Y2K Plan" has the meaning set forth in SECTION 4.26.
"Year 2000 Compliant and Ready" means that (A) the Borrower's
and its Subsidiaries' hardware and software systems with respect to the
operation of their business and their general business plan will: (i) handle
date information involving any and all dates before, during and/or after January
1, 2000, including accepting input, providing output and performing date
calculations in whole or in part; (ii) operate, accurately without interruption
on and in respect of any and all dates before, during and/or after January 1,
2000 and without any change in performance; (iii) store and provide date input
information without creating any ambiguity as to the century, and; (B) the
Borrower has developed alternative plans to ensure business continuity in the
event of the failure of any or all of items (i) through (iii) in clause (A)
above.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared,
in accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's Certified Public Accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and the Subsidiaries delivered to the
Lenders unless with respect to any such change concurred in by the Borrower's
Certified Public Accountants or required by GAAP, in determining compliance with
any of the provisions of this Agreement or any of the other Credit Documents:
(i) the Borrower shall have objected to determining such compliance on such
basis at the time of delivery of such financial statements, or (ii) the Required
Lenders shall so object in writing within thirty (30) days after the delivery of
such financial statements, in either of which events such calculations shall be
made on a basis consistent with those used in the preparation of the latest
financial statements as to which such objection shall not have been made (which,
if objection is made in respect of the first financial statements delivered
under SECTION 5.01 hereof, means the financial statements referred to in SECTION
4.04).
SECTION 1.03. References. Unless otherwise indicated,
references in this Agreement to "articles", "exhibits", "schedules", "sections"
and other subdivisions are references to articles, exhibits, schedules, sections
and other subdivisions hereof.
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SECTION 1.04. Use of Defined Terms. All terms defined in this
Agreement shall have the same defined meanings when used in any of the other
Credit Documents, unless otherwise defined therein or unless the context shall
require otherwise. The terms "accounts", "chattel paper", "instruments",
"general intangibles", "inventory", "documents" "equipment" and "fixtures", as
and when used herein and in the other Credit Documents, shall have the same
meanings given such terms under the UCC.
SECTION 1.05. Terminology. The terms "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular section, paragraph or subdivision. Any pronoun used
shall be deemed to cover all genders. In the computation of periods of time from
a specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding." Unless
and except to the extent otherwise expressly provided herein, the term "pro
rata" when applied to a Lender means the percentage of such Lender's Commitment
to the aggregate amount of all Commitments of the same type or all Commitments
generally, as the case may be. The section titles, table of contents and list of
exhibits appear as a matter of convenience only and shall not affect the
interpretation of this Agreement. All references to statutes and related
regulations shall include any amendments of same and any successor statutes and
regulations. All references to any of the Credit Documents shall include any and
all amendment or modifications thereto and any and all restatements, extensions
or renewals thereof. All references to any Person shall mean and include the
successors and permitted assigns of such Person. All references to "including"
and "include" shall be understood to mean "including, without limitation." All
references to the time of day shall mean the time of day on the day in question
in Atlanta, Georgia, unless otherwise expressly provided in this Agreement. A
Default or an Event of Default shall be deemed to exist at all times during the
period commencing on the date that such Default or Event of Default occurs to
the date on which such Default or Event of Default is waived in writing pursuant
to this Agreement or, in the case of a Default, is cured within any period of
cure expressly provided in this Agreement; and an Event of Default shall
"continue" to be "continuing" until such Event of Default has been waived in
writing by the Required Lenders. Whenever the phrase "to the best of the
Borrower's knowledge" or words of similar import relating to the knowledge or
the awareness of the Borrower are used herein, such phrase shall mean and refer
to (i) the actual knowledge of a Senior Officer of the Borrower or (ii) the
knowledge that Senior Officer would have obtained if he had engaged in a good
faith and diligent performance of his duties, including the making of such
reasonable specific inquiries as may be necessary of the other officers,
employees or agents of the Borrower or any Subsidiary and a good faith attempt
to ascertain the existence or accuracy of the matter to which such phrase
relates. All calculations of money values shall be in Dollars, all Loans made
hereunder shall be funded in Dollars, and all amounts payable in respect of any
of the Obligations shall be paid in Dollars. Any Lien referred to in this
Agreement or any of the other Credit Documents as having been created in favor
of the Collateral Agent, any agreement entered into by the Agent pursuant to
this Agreement or any of the other Credit Documents, any payment made by or to
or funds received by the Collateral Agent pursuant to or as contemplated by any
of the Credit Documents, or any other act taken or admitted to be taken by the
Collateral Agent shall, unless otherwise expressly provided, be created, entered
into, made or received or taken or omitted, for the benefit or account of the
Collateral Agent and the Lenders. Whenever any matter set forth herein or in any
Credit Document is to be consented to or be satisfactory to an Agent, an Issuer,
a Lender or the Required Lenders, or is to be determined, calculated or approved
by an Agent, an Issuer, a Lender or
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the Required Lenders, then, unless otherwise expressly set forth herein or in
any such Credit Document, such consent, satisfaction, determination, calculation
or approval shall be in its (or their) sole discretion, exercised in good faith
and, where required by law, in a commercially reasonable manner, and shall be
conclusive absent manifest error.
ARTICLE 2
THE CREDIT
SECTION 2.01. Commitments to Lend. (a) Revolving Loans. Each
Lender severally agrees, on the terms and conditions set forth herein, to make
Revolving Loans to the Borrower from time to time from the Closing Date to the
Termination Date; provided, however, that,
(i) immediately after each such Revolving Loan is made,
(A) the sum of (1) the Revolving Loans outstanding of each Lender, plus
(2) such Lender's pro rata share of all then outstanding Letter of
Credit Obligations in respect of In-Line Standby Letters of Credit will
not exceed such Lender's Revolving Loan Commitment, as reduced by an
amount equal to such Lender's pro rata allocation of all then
applicable Special Reserves, and (B) the total amount of all then
outstanding Working Capital Obligations will not exceed the amount of
the Aggregate Revolving Loan Commitments, as reduced by an amount equal
to all then applicable Special Reserves, and
(ii) immediately after each such Revolving Loan is made,
the total amount of all then outstanding Working Capital Obligations
will not exceed the aggregate amount of the Borrowing Base.
provided, however, that notwithstanding the foregoing, if the Commitments have
not then been terminated pursuant to SECTION 6.01, (i) the Administrative Agent
may, from time to time, at the direction of the Required Lenders, advance
Revolving Loans on behalf of the Lenders equal to the lesser of (x) the Unused
Revolving Loan Commitment, and (y) an amount not greater than Five Hundred
Thousand Dollars ($500,000) in excess of the amount of the Borrowing Base (each
such Loan being herein referred to as an "Overadvance Loan"); provided, further,
however, that each Overadvance Loan so made pursuant shall (1) become due and
payable in full on or before the date which is ten (10) Business Days after such
Overadvance Loan is made, and (2) not be made during any period longer than ten
(10) Business Days after the date on which such first Overadvance Loan was made.
Each Revolving Loan Borrowing under this SECTION 2.01(a) shall be in an
aggregate principal amount of (x) for Euro-Dollar Loans, One Million Dollars
($1,000,000) or any larger integral multiple of One Hundred Thousand Dollars
($100,000) and (y) for Base Rate Loans, One Million Dollars ($1,000,000) or any
larger integral multiple of One Hundred Thousand Dollars ($100,000) (except that
any Revolving Loan Borrowing may be in the aggregate amount of the Unused
Revolving Loan Commitments or the amount of any Excess Borrowing Availability,
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<PAGE> 41
whichever is the lesser) and shall be made by the several Lenders ratably in
proportion to their respective Commitments. Within the foregoing limits, the
Borrower may borrow under this SECTION, repay or, to the extent permitted by
SECTION 2.09, prepay Revolving Loans and reborrow under this SECTION at any time
before the Termination Date. The proceeds of the initial Revolving Loans, to be
made on the Closing Date, shall be used by the Borrower, first, to retire all
outstanding Debts to the Lenders under the Prior Loan Agreement, and, next, to
pay fees and costs associated with the closing of the credit transactions
contemplated to occur on the Closing Date under this Agreement. The remainder
(if any) of the proceeds of such initial Revolving Loan and each subsequent
Revolving Loan (other than a Refunding Loan) shall be used by the Borrower for
general corporate purposes, including working capital and capital expenditures,
in conformity with all terms and conditions of this Agreement.
(b) In-Line Standby Letters of Credit. As part of the
Revolving Loan Commitment, the Administrative Agent shall issue for the account
of Borrower one or more In-Line Standby Letters of Credit, denominated in
Dollars, in accordance with this SECTION 2.01(b), from time to time during the
period commencing on the Closing Date and ending on the Domestic Business Day
prior to the Termination Date; provided, however, that certain standby letters
of credit, existing on the Closing Date, heretofore issued by the Administrative
Agent for the account of the Borrower, and more particularly described in
SCHEDULE 2.01(b), shall be deemed to constitute In-Line Standby Letters of
Credit, and be deemed issued as of the Closing Date for all purposes hereof;
and, provided, further, that the Administrative Agent shall have no obligation
to issue any In-Line Standby Letter of Credit at any time subsequent to the
Closing Date:
(A) if the aggregate maximum amount then available for
drawing under In-Line Standby Letters of Credit, after giving effect to the
issuance of the requested In-Line Standby Letter of Credit, shall exceed any
limit imposed by law or regulation upon the Administrative Agent as Issuer;
(B) if, after giving effect to the issuance of the
requested In-Line Standby Letter of Credit, (i) the aggregate amount of Letter
of Credit Obligations with respect to all In-Line Standby Letters of Credit
would exceed Two Million Dollars ($2,000,000) or (ii) all then outstanding
Working Capital Obligations would exceed the Borrowing Base;
(C) which has an expiration date (i) more than one (1)
year after the date of issuance or (ii) after the Termination Date.
(D) unless the Borrower shall have delivered to the
Administrative Agent at such times and in such manner as it may prescribe, a
Letter of Credit Application Agreement and such other documents and materials as
may be required pursuant to the terms thereof all satisfactory in form and
substance to the Administrative Agent and the terms of the proposed In-Line
Standby Letter of Credit shall be satisfactory in form and substance to the
Administrative Agent;
(E) if, as of the date of issuance, any order, judgment
or decree of any court, arbitrator or Authority shall purport by its terms to
enjoin or restrain the Administrative
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<PAGE> 42
Agent from issuing any In-Line Standby Letter of Credit and no law, rule or
regulation applicable to the Administrative Agent and no request or directive
(whether or not having the force of law) from any Authority with jurisdiction
over the Administrative Agent shall prohibit or request that the Administrative
Agent refrain from the issuance of letters of credit generally or the issuance
of that In-Line Standby Letter of Credit;
(F) if the Unused Revolving Loan Commitment shall be less
than the amount of the requested In-Line Standby Letter of Credit; or
(G) unless the purpose of such In-Line Standby Letter of
Credit is to provide credit enhancement on a standby basis for general corporate
purposes of the Borrower or a Subsidiary.
At least two (2) Domestic Business Days before the effective date for any
In-Line Standby Letter of Credit, the Borrower shall give the Administrative
Agent a written notice containing the original signature of an authorized
officer or employee of the Borrower substantially in the form attached hereto as
EXHIBIT P-1. Such notice shall be irrevocable and shall specify the original
face amount of the In-Line Standby Letter of Credit requested (which original
face amount shall not be less than One Hundred Thousand Dollars ($100,000), the
effective date (which day shall be a Domestic Business Day) of issuance of such
requested Letter of Credit, the date on which such requested Letter of Credit is
to expire, the amount of then outstanding Letter of Credit Obligations in
respect of In-Line Standby Letters of Credit, the purpose for which such Letter
of Credit is to be issued, whether such requested Letter of Credit may be drawn
in single or partial draws and the Person for whose benefit such requested
Letter of Credit is to be issued. If the original face amount of such requested
Letter of Credit is less than or equal to the Unused Revolving Loan Commitment
at such time and the applicable conditions set forth in this Agreement are
satisfied, the Administrative Agent shall issue the requested In-Line Standby
Letter of Credit. The Administrative Agent shall give each Lender written or
telex notice in substantially the form of EXHIBIT P-2, or telephonic notice
confirmed promptly thereafter in writing, of the issuance of an In-Line Standby
Letter of Credit. The Administrative Agent shall not extend or amend any In-Line
Standby Letter of Credit if the issuance of a new In-Line Standby Letter of
Credit having the same terms as such In-Line Standby Letter of Credit as so
amended or extended would be then prohibited by this SECTION 2.01(b).
(c) Term Loans. Each Lender severally agrees, on the
terms and conditions set forth herein, to make Term Loans to the Borrower in an
aggregate amount up to the amount of its Term Loan Commitments. The initial
advances of the Term Loans shall be made on the date hereinafter prescribed, and
thereafter shall be made only as Refunding Loans from time to time before the
Termination Date. The proceeds from the initial advances of the Term Loans shall
be disbursed upon the closing of, and be used by the Borrower solely to fund its
Obligations in regard to, its purchase from the Thomaston-Upson County
Industrial Development Authority of certain industrial development bonds on the
Closing Date or as soon as practicable thereafter, but in any event within five
(5) Business Days thereafter, the proceeds from which said authority will, in
turn, use on the date of its receipt thereof to retire existing bonds of said
authority, aggregating Eighteen Million Dollars ($18,000,000) in outstanding
principal amount, heretofore purchased by SunTrust ($13,500,000) and Wachovia
($4,500,000), known as "$18,000,000
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<PAGE> 43
Thomaston-Upson County Industrial Development Authority Industrial Development
Bonds (Thomaston Mills, Inc. Prospect) Series 1996A and 1996B". Each Term Loan
Borrowing under this SECTION 2.01(c) shall be in an aggregate principal amount
of (x) for Euro-Dollar Loans, One Million Dollars ($1,000,000), or any larger
integral multiple of One Hundred Thousand Dollars ($100,000), and (y) for Base
Rate Loans, One Million Dollars ($1,000,000), or any larger integral multiple of
One Hundred Thousand Dollars ($100,000), and shall be made by the several
Lenders ratably in proportion to their respective Term Loan Commitments. The
principal amount of each Term Loan shall be due and payable in level, equal
installments, each in the amount of Three Hundred Seventy-Five Thousand Dollars
($375,000), commencing on December 1, 1999, and continuing on the first day of
each succeeding March 1, June 1, September 1 and December 1 thereafter;
provided, however, that each Term Loan (i) shall be due and payable, in full, as
to any principal balance then outstanding on the Termination Date, (ii) shall be
mandatorily prepaid in accordance with SECTION 2.10, and (iii) may be
voluntarily prepaid subject to SECTION 2.09.
(d) Special Standby Letter of Credit in Respect of Pike
Facility Bonds. Heretofore, the Special Issuer issued, for its own account, the
Pike Facility Bonds Standby Letter of Credit on behalf of the Borrower pursuant
to an existing Letter of Credit Application Agreement with the Borrower which
shall be amended and restated on the Closing Date. Effective on the Closing
Date, pursuant to SECTION 2.15, the other Lenders have agreed to purchase
undivided interests and participations therein, and, pursuant to SECTION 3.01,
each Obligor has granted a security interest in the Collateral to secure the
payment and performance of the Obligations arising in respect thereof.
(e) Special Standby Letter of Credit in respect of
Prudential Notes. Effective on the Closing Date, the Special Issuer, for its own
account, shall issue the Prudential Notes Standby Letter of Credit in favor of
Prudential for the benefit of the Borrower pursuant to a Letter of Credit
Application Agreement to be executed on the Closing Date. Pursuant to SECTION
3.01, each Obligor has granted a security interest to the Collateral Agent in
the Collateral to secure the payment and performance of the Obligations arising
in respect thereof. As of the Closing Date, none of the other Lenders has
purchased a participation therein, and none has any liability to the Special
Issuer in regard thereto; provided, however, that if and in the extent provided
in SECTION 2.14(a)(iii), one or more Revolving Loans may be disbursed to finance
the Borrower's repayment to the Special Issuer of its reimbursement obligations
arising from drawings thereunder.
(f) Special Commercial Letter of Credit Facility. The
Special Issuer has further agreed with the Borrower that the Borrower may obtain
one or more Commercial Letters of Credit, denominated in Dollars, to facilitate
the purchase by the Borrower or any Subsidiary of goods or services in the
ordinary course of business from time to time during the period commencing on
the Closing Date and ending on the Domestic Business Day prior to the
Termination Date; provided, however, that certain commercial letters of credit,
existing on the Closing Date, heretofore issued by the Special Issuer for the
account of the Borrower, and more particularly described on SCHEDULE 2.01(f),
shall be deemed to constitute Commercial Letters of Credit, and be deemed issued
as of the Closing Date for all purposes hereof. Pursuant to SECTION 3.01, each
Obligor has granted a security interest to the Collateral Agent in the
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<PAGE> 44
Collateral to secure the payment and performance of the Obligations arising in
respect thereof. As of the Closing Date, none of the other Lenders has purchased
a participation therein, and none has any liability to the Special Issuer in
regard thereto; provided, however, that if and in the extent provided in SECTION
2.14(a)(iii), one or more Revolving Loans may be disbursed to finance the
Borrower's repayment to the Special Issuer of its reimbursement obligations
arising from drawings thereunder. Notwithstanding the foregoing, however, the
Special Issuer shall have no obligation to issue any Commercial Letter of Credit
at any time:
(A) if the aggregate maximum amount then available for
drawing under Commercial Letters of Credit, after giving effect to the issuance
of the requested Commercial Letter of Credit, shall exceed any limit imposed by
law or regulation upon the Special Issuer;
(B) if, after giving effect to the issuance of the
requested Commercial Letter of Credit, the aggregate amount of Letter of Credit
Obligations in receipt of Commercial Letters of Credit would exceed the
Commercial Letter of Credit Commitment;
(C) which has an expiration date (i) more than one (1)
year after the date of issuance or (ii) after the Termination Date.
(D) unless the Borrower shall have delivered to the
Special Issuer at such times and in such manner as the Special Issuer may
prescribe, a Letter of Credit Application Agreement and such other documents and
materials as may be required pursuant to the terms thereof all satisfactory in
form and substance to the Special Issuer and the terms of the proposed
Commercial Letter of Credit shall be satisfactory in form and substance to the
Special Issuer;
(E) if, as of the date of issuance, any order, judgment
or decree of any court, arbitrator or Authority shall purport by its terms to
enjoin or restrain the Special Issuer from issuing the Commercial Letter of
Credit and no law, rule or regulation applicable to the Special Issuer and no
request or directive (whether or not having the force of law) from any Authority
with jurisdiction over the Special Issuer shall prohibit or request that the
Special Issuer refrain from the issuance of letters of credit generally or the
issuance of that Commercial Letter of Credit;
(F) if the unused portion of the Commercial Letter of
Credit Commitment shall be less than the amount of the requested Commercial
Letter of Credit; or
(G) At least two (2) Domestic Business Days before the
effective date for any Commercial Letter of Credit, the Borrower shall give the
Special Issuer a written notice containing the original signature of an
authorized officer or employee of the Borrower substantially in the form
attached hereto as EXHIBIT L. Such notice shall be irrevocable and shall specify
the original face amount of the Commercial Letter of Credit requested, the
effective date (which day shall be a Domestic Business Day) of issuance of such
requested Commercial Letter of Credit, the date on which such requested
Commercial Letter of Credit is to expire, the amount of then outstanding Letter
of Credit Obligations in respect of Commercial Letters of Credit, the purpose
for which such Commercial Letter of Credit is to be issued, whether such Letter
of Credit may be drawn in single or partial draws and the Person for whose
benefit the
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<PAGE> 45
requested Letter of Credit is to be issued. If the original face amount of the
requested Commercial Letter of Credit is less than or equal to the unused
Commercial Letter of Credit Commitment at such time and the applicable
conditions set forth in this Agreement are satisfied, the Special Issuer shall
issue the requested Commercial Letter of Credit. The Special Issuer shall not
extend or amend any Commercial Letter of Credit if the issuance of a new
Commercial Letter of Credit having the same terms as such Commercial Letter of
Credit as so amended or extended would be then prohibited by this SECTION
2.01(f).
SECTION 2.02. Method of Borrowing. For each Revolving Loan and
Term Loan (a) the Borrower shall give the Administrative Agent notice (a "Notice
of Borrowing"), which shall be substantially in the form of EXHIBIT E, prior to
(x) as to Base Rate Loans, 11:00 A.M. (Atlanta, Georgia, time) on the Domestic
Business Day of such Base Rate Borrowing, and (y) as to Euro-Dollar Loans, 11:00
A.M. (Atlanta, Georgia time), at least three (3) Euro-Dollar Business Days
before each Euro-Dollar Borrowing, specifying: (i) the date of such Borrowing,
which shall be a Domestic Business Day in the case of a Base Rate Borrowing or a
Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing, (ii) the
aggregate amount of such Borrowing, (iii) whether the Loans comprising such
Borrowing are to be Base Rate Loans or Euro-Dollar Loans, (iv) whether the Loans
comprising such Borrowing are to be Revolving Loans or Term Loans, and (v) in
the case of a Euro-Dollar Borrowing, the duration of the Interest Period
applicable thereto, subject to the provisions of the definition of Interest
Period.
(b) Upon receipt of a Notice of Borrowing, the
Administrative Agent shall promptly notify each Lender of the contents thereof
and of such Lender's ratable share of such Borrowing, and such Notice of
Borrowing, once received by the Administrative Agent, shall not thereafter be
revocable by the Borrower.
(c) Not later than (a) as to Euro-Dollar Borrowings,
11:00 A.M. (Atlanta, Georgia time), and (b) as to Base Rate Borrowings, 4:00
P.M. (Atlanta, Georgia time) on the date of each Syndicated Borrowing, each
Lender shall (except as provided in paragraph (d) of this SECTION) make
available its ratable share of such Syndicated Borrowing, in federal or other
funds immediately available in Atlanta, Georgia, to the Administrative Agent at
its address determined pursuant to SECTION 10.01. Unless the Administrative
Agent determines that any applicable condition specified in ARTICLE 9 has not
been satisfied, the Administrative Agent will make the funds so received from
the Lenders available to the Borrower at the Administrative Agent's aforesaid
address. Unless the Agent receives notice from a Lender, at the Administrative
Agent's aforesaid address, no later than 4:00 P.M. (local time at such address)
on the Domestic Business Day before the date of a Syndicated Borrowing stating
that such Lender will not make a Syndicated Loan in connection with such
Syndicated Borrowing, the Administrative Agent shall be entitled to assume that
such Lender will make a Syndicated Loan in connection with such Syndicated
Borrowing and, in reliance on such assumption, the Administrative Agent may (but
shall not be obligated to) make available such Lender's ratable share of such
Syndicated Borrowing to the Borrower for the account of such Lender. If the
Administrative Agent makes such Lender's ratable share available to the Borrower
and such Lender does not in fact make its ratable share of such Syndicated
Borrowing available on such date, the Administrative Agent shall be entitled to
recover such Lender's ratable share from such Lender or the Borrower (and for
such purpose shall be entitled to charge such amount to any account of the
Borrower
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<PAGE> 46
maintained with the Administrative Agent), together with interest thereon for
each day during the period from the date of such Syndicated Borrowing until such
sum shall be paid in full at a rate per annum equal to the rate at which the
Administrative Agent determines that it obtained (or could have obtained)
overnight federal funds to cover such amount for each such day during such
period, provided that (i) any such payment by the Borrower of such Lender's
ratable share and interest thereon shall be without prejudice to any rights that
the Borrower may have against such Lender and (ii) until such Lender has paid
its ratable share of such Syndicated Borrowing, together with interest pursuant
to the foregoing, it will have no interest in or rights with respect to such
Syndicated Borrowing for any purpose hereunder. If the Administrative Agent does
not exercise its option to advance funds for the account of such Lender, it
shall forthwith notify the Borrower of such decision.
(d) If any Lender makes a new Syndicated Loan hereunder
on a day on which the Borrower is to repay all or any part of an outstanding
Syndicated Loan from such Lender, such Lender shall apply the proceeds of its
new Syndicated Loan to make such repayment as a Refunding Loan and only an
amount equal to the difference (if any) between the amount being borrowed and
the amount of such Refunding Loan shall be made available by such Lender to the
Administrative Agent as provided in paragraph (c) of this SECTION, or remitted
by such Borrower to the Administrative Agent as provided in SECTION 2.11, as the
case may be.
(e) Notwithstanding anything to the contrary contained in
this Agreement, the Lenders shall not be obligated to make any Euro-Dollar Loans
if there shall have occurred a Default or an Event of Default, which Default or
Event of Default shall not have been cured or waived, and all Refunding Loans
shall be made as Base Rate Loans (but shall bear interest at the Default Rate,
if applicable). Nothing in the preceding sentence shall obligate, or be deemed
to obligate, any of the Lenders to make any Loans at all during the existence of
an Event of Default, other than Refunding Loans in the event that the
Obligations have not been accelerated pursuant to SECTION 6.01.
(f) In the event that a Notice of Borrowing fails to
specify whether the Syndicated Loans comprising such Syndicated Borrowing are to
be Base Rate Loans or Euro-Dollar Loans, such Syndicated Loans shall be made as
Base Rate Loans. If the Borrower is otherwise entitled under this Agreement to
repay any Syndicated Loans maturing at the end of an Interest Period applicable
thereto with the proceeds of a new Borrowing, and the Borrower fails to repay
such Syndicated Loans using its own moneys and fails to give a Notice of
Borrowing in connection with such new Syndicated Borrowing, a new Syndicated
Borrowing shall be deemed to be made on the date such Syndicated Loans mature in
an amount equal to the principal amount of the Syndicated Loans so maturing, and
the Syndicated Loans comprising such new Syndicated Borrowing shall be Base Rate
Loans.
(g) Notwithstanding anything to the contrary contained
herein, there shall not be more than five (5) Euro-Dollar Borrowings outstanding
at any given time.
SECTION 2.03. Notes. (a) The Revolving Loans of each Lender
shall be evidenced by a single Revolving Loan Note payable to the order of such
Lender for the account of its Lending Office in an amount equal to the original
principal amount of such Lender's
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<PAGE> 47
Revolving Loan Commitment. The Term Loans of each Lender shall be evidenced by a
single Term Loan Note payable to the order of such Lender for the account of its
Lending Office in an amount equal to the original principal amount of such
Lender's Term Loan Commitment.
(b) Upon receipt of each Lender's Notes pursuant to
SECTION 9.01, the Administrative Agent shall deliver such Notes to such Lender.
Each Lender will record either on its own books and records or on Schedules
attached to its Notes, at its option, and prior to any transfer of its Notes
will transfer a copy of the relevant portions of its books and records or
endorse on such schedules attached to its Notes appropriate notations to
evidence; the date, amount and maturity of, and effective interest rate for,
each Loan made by it, and the date and amount of each payment of principal made
by the Borrower with respect thereto. Such records, whether on the Lender's
books and records or on Schedules to the Notes will constitute prima facie
evidence, in the absence of manifest error, of the respective principal amounts
owing and unpaid on such Lender's Notes; provided that the failure of any Lender
to make, or any error in making, any such recordation or endorsement shall not
affect the obligation of the Borrower hereunder or under the Notes or the
ability of any Lender to assign its Notes. Each Lender is hereby irrevocably
authorized by the Borrower so to endorse its Notes, in the event such option is
elected by such Lender, and to attach to and make a part of any Note a
continuation of any such Schedule as and when required.
(c) The Administrative Agent shall maintain on its books
a control account for the Borrower in which shall be recorded (i) the date,
amount, effective interest rate and maturity of each Revolving Loan and Term
Loan made hereunder to the Borrower, (ii) the amount of any principal, interest
or fees due or to become due from the Borrower on the Revolving Loans and the
Term Loans and (iii) the amount of any sum received by the Administrative Agent
hereunder in respect of any such principal, interest or fees due on the
Revolving Loans and Term Loans and each Lender's share thereof.
(d) The entries made in the accounts pursuant to
paragraph (c) above shall be prima facie evidence, in the absence of manifest
error, of the existence and amounts of the Obligations of the Borrower therein
recorded and any payments thereon, and in case of discrepancy between such
accounts and the schedules to the Notes maintained by any Lender pursuant to
paragraph (b) or between such accounts and the books and records of the
Borrower, in the absence of manifest error, the control account maintained by
the Administrative Agent pursuant to paragraph (c) above shall be controlling
with respect to Revolving Loans and Term Loans.
SECTION 2.04. Maturity of Loans. (a) Each Loan included in any
Borrowing will mature, and the principal amount thereof will be due and payable,
on the last day of the Interest Period applicable to such Borrowing, subject to
the advance of a Refunding Loan, unless such Loan will be due and payable prior
thereto by reason of the provisions of this Agreement (including, without
limitation, SECTION 6.01).
(b) Notwithstanding the foregoing, the outstanding
principal amount of all Loans, if any, together with all accrued but unpaid
interest thereon, if any, shall be due and payable on the Termination Date.
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<PAGE> 48
SECTION 2.05. Interest Rates. For purposes of determining the
rate of interest to be charged on Loans outstanding: (a) "Applicable Margin"
means: (i) for the period commencing on the Closing Date to and including the
first Performance Pricing Determination Date, (A) for any Base Rate Loan,
seventy-five hundredths of one percent (.75%) per annum, and (B) for any
Euro-Dollar Loan, two and seventy-five hundredths of one percent (2.75%) per
annum; and
(ii) from and after the first Performance Pricing Determination
Date, for any Base Rate Loan or Euro-Dollar Loan, the percentage determined on
each Performance Pricing Determination Date by reference to the table set forth
below as to each such type of Loan and the Funded Debt/EBITDA Ratio (herein
sometimes called the "Test Ratio") as determined as of the end of the Fiscal
Quarter ending immediately prior to such Performance Pricing Determination Date:
<TABLE>
<CAPTION>
Applicable
Applicable Margin for Margin for Base
Euro-Dollar Rate
Test Ratio Loans Loans
---------- --------------------- ---------------
<S> <C> <C>
Level I
If the Test Ratio is less
than or equal to 3.00:1 1.25% 0%
Level II
If the Test Ratio is
greater than 3.00:1 but
less than or equal to
3.50:1 1.50% 0%
Level III
If the Test Ratio is
greater than 3.50:1, but
less than or equal to
4.00:1 1.75% 0%
Level IV
If the Test Ratio is
greater than 4.00:1, but
less than or equal to
4.50:1 2.00% 0%
</TABLE>
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<PAGE> 49
<TABLE>
<CAPTION>
<S> <C> <C>
Level V
If the Test Ratio is
greater than 4.50:1, but
less than or equal to
5.00:1 2.50% .50%
Level VI
If the Test Ratio is
greater than 5.00:1 2.75% .75%
</TABLE>
The Applicable Margin shall be subject to reduction or increase, as applicable
and as set forth in the table above, on a quarterly basis according to the
performance of the Borrower as measured by the Test Ratio for the immediately
preceding four (4) Fiscal Quarters of the Borrower, beginning with the Fiscal
Quarter ending closest to June 30, 1999. Except as set forth in the last
sentence hereof, any such increase or reduction in the Applicable Margin
provided for herein shall be effective on the first day of the first calendar
month after receipt by the Administrative Agent of the applicable financial
statements and corresponding Compliance Certificate setting forth, among other
things, the calculations necessary to determine whether any such adjustment is
then necessary (such date being referred to herein as the "Performance Pricing
Determination Date"); provided, however, that any reduction in the Applicable
Margin shall not apply to any Euro-Dollar Loans outstanding on the Performance
Pricing Determination Date that have an Interest Period commencing prior to the
Performance Pricing Determination Date. If the financial statements and the
Compliance Certificate of the Borrower setting forth the Test Ratio are not
received by the Administrative Agent by the dates required pursuant to SECTIONS
5.01(a) and (b) of this Agreement, the Applicable Margin shall be determined as
if the Test Ratio exceeds the ratio set forth as Level VI in the foregoing table
until such time as such financial statements and Compliance Certificate are
received and any Event of Default resulting from a failure to timely deliver
such financial statements or Compliance Certificate is waived in writing by the
Administrative Agent and the Required Lenders. For the final Fiscal Quarter of
any Fiscal Year, the Borrower shall provide the unaudited financial statements
of Borrower, subject only to year-end adjustments, for the purpose of
determining the Applicable Margin; provided, however, if, upon delivery of the
annual audited financial statements required to be submitted by the Borrower to
the Administrative Agent pursuant to SECTION 5.01(a) of this Agreement, the
Applicable Margin, as determined therefrom, is different from the Applicable
Margin so determined from the quarterly financial statements, then (a) the then
existing Applicable Margin shall be terminated and, effective on the first day
of the month following receipt by the Administrative Agent of such audited
financial statements, the Applicable Margin shall be the Applicable Margin based
upon the audited financial statements of the Borrower for the Fiscal Year then
ended, and (b) the Borrower shall pay to the Administrative Agent, for the
benefit of the Lenders (or, as applicable, the Administrative Agent, from funds
received from the Lenders, shall pay to the Borrower), on the first day of the
first calendar month following receipt by the Administrative Agent of such
audited financial statements, an amount equal to the difference
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between the amount of interest or fees that would have been paid on the
principal amount of the Obligations using the Applicable Margin determined based
upon the such audited financial statements and the amount of interest or fees
actually paid during the period in which the reduction of the Applicable Margin
was in effect based upon the unaudited financial statements of such final Fiscal
Quarter of the Fiscal Year then ended (or, vice versa, if the Applicable Margin,
as finally determined, shall be less than that determined provisionally).
(b) Each Base Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Loan is
made until it becomes due, at a rate per annum equal to the Base Rate for such
day plus the Applicable Margin. Accrued interest on each Base Rate Loan shall be
due and payable monthly in arrears, on the last day of each calendar month,
beginning with the calendar month in which such Base Rate Loan is made and
continuing on a monthly basis thereafter until such Base Rate Loan is paid in
full, and at maturity. Any overdue principal of and, to the extent permitted by
applicable law, overdue interest on any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin plus the
applicable Adjusted London Interbank Offered Rate for such Interest Period. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than one (1) month, at monthly intervals on
the last day of each calendar month. Any overdue principal of and, to the extent
permitted by law, overdue interest on any Euro-Dollar Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100th of 1%) by dividing (i) the
applicable London Interbank Offered Rate for such Interest Period by (ii) 1.00,
minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means for the Interest Period of such Euro-Dollar Loan, the
rate per annum determined on the basis of the offered rate for deposits in
Dollars of amounts equal or comparable to the principal amount of such
Euro-Dollar Loan offered for a term comparable to such Interest Period, which
rate appears on the Dow Jones Telerate Service Page 3750 effective as of 11:00
A.M., London time, two (2) Euro-Dollar Business Days prior to the first day of
such Interest Period, provided that if no such offered rates appear on such
page, the "London Interbank Offered Rate" for such Interest Period will be the
arithmetic average (rounded upward, if necessary, to the next higher 1/100th of
1%) of rates quoted by not less than two (2) major banks in New York City,
selected by the Administrative Agent, at approximately 10:00 A.M., New York City
time, two (2) Euro-Dollar Business Days prior to the first day of such Interest
Period, for deposits in Dollars offered by leading European banks for a period
comparable to such Interest Period in an amount comparable to the principal
amount of such Euro-Dollar Loan.
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"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in respect of "eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Lender to United States residents). The Adjusted
London Interbank Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.
(d) The Administrative Agent shall determine each
interest rate applicable to the Loans hereunder. The Administrative Agent shall
give prompt notice to the Borrower and the Lenders by telecopier of each rate of
interest so determined, and its determination thereof shall be conclusive in the
absence of manifest error.
(e) After the occurrence and during the continuance of an
Event of Default, the principal amount of the Loans (and, to the extent
permitted by applicable law, all accrued interest thereon, accrued fees and
other Obligations then and thereafter due and payable) may, at the election of
the Required Lenders, bear interest at the Default Rate.
SECTION 2.06. Fees. (a) The Borrower shall pay to the
Administrative Agent, for the ratable account of each Lender, a commitment fee,
calculated on the average daily amount of such Lender's pro rata share of the
Unused Revolving Loan Commitment, at the rate of 375/1000ths of one percent
(.375%) per annum, through the first Performance Pricing Determination Date.
Thereafter, the commitment fee shall be subject to reduction or increase, as
applicable and as set forth in the table below (with references to Levels I
through VI below corresponding to the same Levels I through VI in SECTION
2.05(a)):
<TABLE>
<S> <C>
Level I .20%
Level II .20%
Level III .25%
Level IV .25%
Level V .30%
Level VI .375%
</TABLE>
The commitment fee shall be subject to reduction or increase, as applicable and
as set forth in the table above, on a quarterly basis according to the
performance of the Borrower as measured by the Test Ratio for the immediately
preceding four (4) Fiscal Quarters of the Borrower, beginning with the Fiscal
Quarter ending closest to June 30, 1999. Except as set forth in the last
sentence hereof, any such increase or reduction in the commitment fee provided
for herein shall be effective on the first day of the first calendar month after
receipt by the Administrative Agent of the applicable financial statements and
corresponding Compliance Certificate setting forth, among other things, the
calculations necessary to determine whether any such adjustment is then
necessary (such date being referred to herein as the "Performance Pricing
Determination Date"). If the financial statements and the Compliance Certificate
of the Borrower setting forth the Test Ratio are not received by the
Administrative Agent by the date required pursuant to SECTIONS
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5.01(a) and (b) of this Agreement, the commitment fee shall be determined as if
the Test Ratio exceeds the ratio set forth as Level VI in the foregoing table
until such time as such financial statements and Compliance Certificate are
received and any Event of Default resulting from a failure to timely deliver
such financial statements or Compliance Certificate is waived in writing by the
Administrative Agent and the Required Lenders. For the final Fiscal Quarter of
any Fiscal Year, the Borrower may provide the unaudited financial statements of
Borrower, subject only to year-end adjustments, for the purpose of determining
the commitment fee; provided, however, if, upon delivery of the annual audited
financial statements required to be submitted by the Borrower to the
Administrative Agent pursuant to SECTION 5.01(a) of this Agreement, the Borrower
has not met the criteria for reduction of the commitment fee pursuant to the
terms hereinabove for the final quarter of such Fiscal Year then ended, then (a)
such commitment fee reduction shall be terminated and, effective on the first
day of the month following receipt by the Administrative Agent of such audited
financial statements, the commitment fee shall be the commitment fee that would
have been in effect if such reduction had not been implemented based upon the
unaudited financial statements of the Borrower for the final Fiscal Quarter of
such Fiscal Year then ended, and (b) the Borrower shall pay to the
Administrative Agent, for the benefit of the Lenders, on the first day of the
month following receipt by the Agent of such audited financial statements, an
amount equal to the difference between the amount of commitment fee that would
have been paid on the principal amount of the Obligations using the commitment
fee determined based upon the such audited financial statements and the amount
of commitment fees actually paid during the period in which the reduction of the
commitment fee was in effect based upon the unaudited financial statements of
such final Fiscal Quarter of the Fiscal Year then ended. Such commitment fees
shall accrue from and including the Closing Date to but excluding the
Termination Date and shall be payable quarterly in arrears on each March 31,
June 30, September 30 and December 31 and on the Termination Date.
(b) Up-Front Fee. The Borrower shall also pay to the
Administrative Agent, for the ratable account of each Lender, an up-front fee in
an amount equal to twenty-five hundredths of one percent (.25%) of the aggregate
amount of its total Commitment, which shall be payable on the Closing Date.
(c) Agents' Fees. The Borrower shall pay to the Agent,
for the account and sole benefit of the Agents, such fees and other amounts at
such times as set forth in the Agents' Letter Agreement.
(d) Standard Letter of Credit Fees and Charges. The
Borrower shall pay to the Administrative Agent with respect to the Pike Bonds
Facility Standby Letter of Credit and for each In-Line Standby Letter of Credit
issued hereunder a letter of credit fee ("Standard Letter of Credit Fees") at a
rate per annum equal to the sum of (i) one-tenth of one percent (.10%) (herein,
the "facing fee") plus (ii) the then effective Applicable Margin for Euro-Dollar
Loans times the face amount of each such Letter of Credit, payable on the
Domestic Business Day on which such Letter of Credit is issued, for each In-Line
Standby Letter of Credit, based on the stated term to expiry thereof, and
payable as follows in respect of the Pike Facility Bonds Standby Letter of
Credit: (i) on the Closing Date, a Standard Letter of Credit Fee for the period
from the Closing Date to, but not including, the initial Performance Pricing
Determination Date (which, for purposes of this subsection (d) shall be deemed
to be September 1, 1999) shall be charged and
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collected, based on the gross amount available for drawing on the Closing Date;
and (ii) on the initial Performance Pricing Determination Date, as deemed
aforesaid, and quarterly thereafter on each subsequent Performance Pricing
Determination Date, a Standard Letter of Credit Fee shall be charged and
collected for the quarterly period between each such Performance Pricing
Determination Date and the next, based on the gross amount available for drawing
on each such Performance Pricing Determination Date. Standard Letter of Credit
Fees payable hereunder shall be computed on the basis of a year of 360 days and
paid for the actual number of days elapsed (including the first day but
excluding the last day). The Administrative Agent shall promptly remit such
Standard Letter of Credit Fees, when paid, to the Lenders (after first deducting
therefrom the facing fees, which the Administrative Agent shall remit to the
respective Issuers), in accordance with their pro rata shares thereof. The
Borrower shall also pay to each Issuer of such Letters of Credit, solely for its
own account, the standard charges assessed by each Issuer in connection with the
issuance, administration, amendment and payment or cancellation of such Letters
of Credit, which charges shall be those typically charged by such Issuer to its
customers generally having credit and other characteristics similar to the
Borrower, as determined in good faith by such Issuer.
(e) Fees and Charges on Letters of Credit Issued by the
Special Issuer. The Borrower shall pay to the Special Issuer with respect to the
Prudential Notes Standby Letter of Credit and each Commercial Letter of Credit
such fees and charges as to which the Special Issuer and the Borrower may agree
from time to time in the applicable Letter of Credit Application Agreement (the
"Special Letter of Credit Fees"), all of which shall be solely for the Special
Issuer's own account, and will not be shared with any other Lenders. The
Borrower shall also pay to the Special Issuer, solely for its own account, the
standard charges assessed by such Issuer in connection with the issuance,
administration, amendment and payment or cancellation of such Letters of Credit,
which charges shall be those typically charged by the Issuer to its customers
generally having credit and other characteristics similar to the Borrower, as
determined in good faith by such Issuer.
SECTION 2.07. Optional Termination or Reduction of
Commitments. The Borrower may, upon at least forty-five (45) days' prior written
notice to the Administrative Agent, terminate the Commitments in their entirety
at any time, or upon at least three (3) Domestic Business Days' prior written
notice to the Administrative Agent, proportionately reduce the Unused Revolving
Loan Commitments from time to time by an aggregate amount of at least Five
Million Dollars ($5,000,000) or any larger integral multiple of One Million
Dollars ($1,000,000) in the aggregate (unless such reduction shall cause the
Aggregate Revolving Loan Commitments to be reduced below Twenty-Five Million
Dollars ($25,000,000)). If the Revolving Loan Commitments are terminated in
their entirety, all accrued fees in respect thereof (as provided under SECTION
2.06) shall be due and payable on the effective date of such termination.
SECTION 2.08. Mandatory Reduction and Termination of
Commitments. The Commitments shall terminate on the Termination Date and any
Loans, Letter of Credit Obligations and other Obligations then outstanding
(together with accrued interest thereon) shall be due and payable on such date.
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SECTION 2.09. Optional Prepayments. (a) Upon notice to the
Administrative Agent prior to 11:00 A.M. (Atlanta, Georgia, time) on the same
Domestic Business Day, the Borrower may prepay any Loan which is a Base Rate
Borrowing in whole at any time, or from time to time in part in amounts
aggregating at least One Hundred Thousand Dollars ($100,000), by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Base Rate Loans of the several Lenders included in such Base Rate
Borrowing; provided, however, with respect to Term Loans, prepayments shall be
applied in the inverse order of the respective maturities of the installments
thereof then remaining to be paid.
(b) Euro-Dollar Loans may not be prepaid before the end
of the Interest Period applicable to such Loans, except (i) as permitted by all
of the Lenders in the exercise of their sole discretion, subject to any
compensation payments required by SECTION 8.05, and (ii) in connection with
prepayments required by SECTIONS 2.10(c) and (d), subject to any compensation
payments required by SECTION 8.05, unless the amount of such prepayment is
deposited with the Administrative Agent as cash collateral to secure the
Obligations with the direction and authorization given to the Administrative
Agent to apply such cash collateral toward payment of such Euro-Dollar Loan at
the end of the Interest Period for such Loan.
(c) Upon receipt of a notice of prepayment pursuant to
this SECTION 2.09, the Administrative Agent shall promptly notify each Lender of
the contents thereof and of such Lender's ratable share of such prepayment, and
such notice, once received by the Administrative Agent, shall not thereafter be
revocable by the Borrower.
(d) In the event that any Loan is prepaid on the same day
such Loan was advanced, interest hereunder on such Loan shall be due and payable
for that day.
(e) The Borrower shall be obliged, concurrently with any
prepayment of the Term Loans pursuant to this SECTION 2.09, to either (i) prepay
the Prudential Notes in an amount equal to the amount of such prepayment of the
Term Loans or (ii) pay to the Collateral Agent an amount equal to the amount of
such prepayment to be held by the Collateral Agent for the benefit of the
Special Issuer as cash Collateral in respect of Letter of Credit Obligations
arising from the Prudential Notes Standby Letter of Credit.
SECTION 2.10. Mandatory Prepayments. (a) On each date on which
the Revolving Loan Commitments are reduced pursuant to SECTION 2.07 or SECTION
2.08, the Borrower shall repay or prepay such principal amount of the
outstanding Revolving Loans, if any (together with interest accrued thereon and
any amount due under SECTION 8.05(a)), as may be necessary so that after such
payment the Working Capital Obligations do not exceed the aggregate amount of
the Revolving Loan Commitments as then reduced.
(b) On each date on which the Working Capital Obligations
exceed the Borrowing Base, the Borrower shall repay or prepay such principal
amount of the outstanding Revolving Loans, if any (together with interest
accrued thereon and any amount due under SECTION 8.05(a)), as may be necessary
so that after such payment the Working Capital Obligations do not exceed the
Borrowing Base. Each such payment or prepayment shall be applied ratably to the
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Revolving Loans of the Lenders outstanding on the date of payment or prepayment,
first, to Base Rate Loans, and, next, to Euro-Dollar Loans.
(c) Contemporaneously upon receipt of Net Cash Proceeds,
unless a Default or Event of Default then exists (in which event, SECTION
2.11(d) shall be controlling), the Borrower shall pay to the Administrative
Agent an amount equal to: (i) the sum of (x) one hundred percent (100%) of all
Net Cash Proceeds in the aggregate in any Fiscal Year from the disposition of
assets, other than Inventory Collateral and Equipment Collateral, plus (y) one
hundred percent (100%) of the Net Cash Proceeds in the aggregate in any Fiscal
Year from the disposition of Equipment Collateral, to the extent such Net Cash
Proceeds are not used to replace such disposed Equipment Collateral with new
Equipment Collateral in accordance with and pursuant to SECTION 5.36; (ii) one
hundred percent (100%) of Net Cash Proceeds from the disposition of equity
interests in Joint Ventures; and (iii) one hundred percent (100%) of the Net
Cash Proceeds from the issuance of Capital Stock or the incurrence of Debt for
money borrowed. Such payment shall be accompanied by a detailed calculation
showing all deductions from gross proceeds in order to arrive at Net Cash
Proceeds, as well as amounts used or reserved for the purchase of replacement
Equipment Collateral, if applicable. All such payments shall be applied, first,
pro rata, among (i) the Term Loans then outstanding, in prepayment thereof, (ii)
the Prudential Notes, in prepayment thereof, or at the Borrower's election, as
cash Collateral (to be held by the Collateral Agent for the benefit of the
Special Issuer) in respect of Letter of Credit Obligations arising from the
Prudential Notes Standby Letter of Credit, and (iii) the Pike Facility Bonds, in
prepayment thereof, or, at the Borrower's election, as cash Collateral (to be
held by the Collateral Agent for the benefit of the Special Issuer) in respect
of Letter of Credit Obligations arising from the Pike Facility Bonds Standby
Letter of Credit, based on the proportion which the then outstanding principal
amount of each of such Obligations (described in clauses (i), (ii) and (iii)
above) bears to the aggregate principal amount thereof (it being understood and
agreed, however, that so long as any Term Loans are then outstanding, as between
such Term Loans and any Letter of Credit Obligations arising from the Pike
Facility Bonds Standby Letter of Credit, the Term Loans shall first be paid in
full); and, next, as to any remainder, to the Revolving Loans. Any such
prepayments of the Term Loans shall be applied in the inverse order of the
respective maturities of the installments thereof then remaining to be paid.
Notwithstanding the foregoing, however, the consent of the Required Lenders
shall be required, (A) pursuant to SECTION 5.05, in respect of any such
disposition of assets or equity interests in Joint Ventures, (B) pursuant to
SECTION 5.25, in respect of the incurrence of Debt for money borrowed, and (C)
pursuant to SECTION 6.01(k), in respect of the issuance of any Capital Stock
which otherwise would result in an Event of Default thereunder.
(d) The Borrower shall also make Excess Cash Flow
Payments to the Administrative Agent, payable on the date the Borrower furnishes
to the Agent and the Lenders the annual financial statements referred to in
SECTION 5.01 of this Agreement. If, however, the Borrower fails to furnish such
financial statements in any given year as and when required, the Borrower shall
be required to pay the Excess Cash Flow Payments payable during such year on the
date which is ninety (90) days after the close of the then preceding Fiscal
Year. Each such Excess Cash Flow Payment shall be applied, first, pro rata,
among (i) the Term Loans then outstanding, in prepayment thereof, (ii) as cash
Collateral (to be held by the Collateral Agent for the benefit of the Special
Issuer) in respect of Letter of Credit Obligations arising from the Prudential
Notes
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Standby Letter of Credit, and (iii) as cash Collateral (to be held by the
Collateral Agent for the benefit of the Special Issuer) in respect of Letter of
Credit Obligations arising from the Pike Facility Bonds Standby Letter of
Credit, based on the proportion which the then outstanding principal amount of
each of such Obligations (described in clauses (i), (ii) and (iii) above) bears
to the aggregate principal amount thereof (it being understood and agreed,
however, that so long as any Term Loans are then outstanding, as between such
Term Loans and any Letter of Credit Obligations arising from the Pike Facility
Bonds Standby Letter of Credit, the Term Loans shall first be paid in full);
and, next, as to any remainder, to the Revolving Loans. Any such prepayments of
the Term Loans shall be applied in the inverse order of the respective
maturities of the installments thereof then remaining to be paid. The Borrower
shall also pay to the Administrative Agent, for the ratable benefit of the
Lenders on the date of each Excess Cash Flow Payment, accrued and unpaid
interest to such date on the amount of Loans prepaid.
SECTION 2.11. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of,
and interest on, the Loans and of fees hereunder, not later than 11:00 A.M.
(Atlanta, Georgia time) on the date when due, in federal or other funds
immediately available in Atlanta, Georgia, to the Administrative Agent at its
address referred to in SECTION 10.01. All payments received by the
Administrative Agent after 11:00 A.M. (Atlanta, Georgia time) on any Business
Day shall be deemed to be received on the following Business Day. The
Administrative Agent will promptly distribute to each Lender its ratable share
of each such payment received by the Administrative Agent for the account of the
Lenders.
(b) Whenever any payment of principal of, or interest on,
the Base Rate Loans or of Fees hereunder shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day.
(c) All payments of principal, interest and fees and all
other amounts to be made by the Borrower pursuant to this Agreement with respect
to any Loan or fee relating thereto shall be paid without deduction for, and
free from, any tax, imposts, levies, duties, deductions, or withholdings of any
nature now or at anytime hereafter imposed by any governmental authority or by
any taxing authority thereof or therein excluding in the case of each Lender,
taxes imposed on or measured by its net income, and franchise taxes imposed on
it, 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
its income, and franchise taxes imposed on it, by the jurisdiction of such
Lender's applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, imposts, levies, duties, deductions or withholdings of
any nature being "Taxes"). In the event that the Borrower is required by
applicable law to make any such withholding or deduction of Taxes with respect
to any Loan or fee or other amount, the Borrower shall pay such deduction or
withholding to the applicable
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<PAGE> 57
taxing authority, shall promptly furnish to any Lender in respect of which such
deduction or withholding is made all receipts and other documents evidencing
such payment and shall pay to such Lender additional amounts as may be necessary
in order that the amount received by such Lender after the required withholding
or other payment shall equal the amount such Lender would have received had no
such withholding or other payment been made. If no withholding or deduction of
Taxes are payable in respect to any Loan or fee relating thereto, the Borrower
shall furnish any Lender, at such Lender's request, a certificate from each
applicable taxing authority or an opinion of counsel acceptable to such Lender,
in either case stating that such payments are exempt from or not subject to
withholding or deduction of Taxes. If the Borrower fail to provide such original
or certified copy of a receipt evidencing payment of Taxes or certificate(s) or
opinion of counsel of exemption, the Borrower hereby agrees to compensate such
Lender for, and indemnify it with respect to, the tax consequences of the
Borrower's failure to provide evidence of tax payments or tax exemption. Before
making any claim pursuant to this SECTION, such Lender shall designate a
different Lending Office if such designation will avoid the need for giving such
notice and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
Each Lender which is not organized under the laws of the
United States or any state thereof agrees, as soon as practicable after receipt
by it of a request by the Borrower to do so, to file all appropriate forms and
take other appropriate action to obtain a certificate or other appropriate
document from the appropriate governmental authority in the jurisdiction
imposing the relevant Taxes, establishing that it is entitled to receive
payments of principal and interest under this Agreement and the Notes without
deduction and free from withholding of any Taxes imposed by such jurisdiction;
provided that if it is unable, for any reason, to establish such exemption, or
to file such forms and, in any event, during such period of time as such request
for exemption is pending, the Borrower shall nonetheless remain obligated under
the terms of the immediately preceding paragraph.
In the event any Lender receives a refund of any Taxes paid by
the Borrower pursuant to this SECTION 2.11(c), it will pay to the Borrower the
amount of such refund promptly upon receipt thereof; provided that if at any
time thereafter it is required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower and the
Lenders contained in this SECTION 2.11(c) shall be applicable with respect to
any Participant, Assignee or other Transferee, and any calculations required by
such provisions (i) shall be made based upon the circumstances of such
Participant, Assignee or other Transferee, and (ii) constitute a continuing
agreement and shall survive the termination of this Agreement and the payment in
full or cancellation of the Notes.
(d) Unless and except to the extent otherwise expressly
provided in this Agreement, all monies to be applied to the Obligations, whether
such monies represent voluntary payments by the Borrower or are received
pursuant to acceleration of the Loans or realized from any disposition of
Collateral, shall be allocated among such of the Agents, the Issuers and the
Lenders as are entitled thereto (and, with respect to monies allocated to the
Lenders, on a pro rata
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basis based on the respective percentage which each Lender's portion of the
particular Obligation(s) in question bears to the whole of such Obligations
within each subclause, unless otherwise expressly provided herein) in the
following order (in each case, until all Obligations within each category
described below are fully paid): (i) first, to the Administrative Agent to pay
principal and accrued interest on any portion of any Loans which the
Administrative Agent may have advanced on behalf of any Lender and for which the
Administrative Agent has not been reimbursed by such Lender or the Borrower;
(ii) next, to the Agents and the Issuers first, and then to the Lenders, to pay
the amount of any expenses that have not been reimbursed, respectively, to the
Agents, the Issuers or the Lenders by the Borrower (or the other Lenders, as
applicable) in accordance with the terms of this Agreement, together with any
interest accrued thereon; (iii) next, to the Agents and the Issuers to pay any
amounts owed under indemnification obligations that have not been paid to the
Agents or the Issuers by the Lenders or the Borrower, together with interest
accrued thereon; (iv) next, to the Agents and the Issuers to pay any Fees then
due and payable to the Agents and the Issuers for their own accounts; (v) next,
to the Lenders for any amounts owed under indemnification obligations that they
have paid to the Agents or the Issuers and for any expenses that they have
reimbursed to the Agents or the Issuers; (vi) next, to the payment of any ForEx
Obligations then due and payable; (vii) next, to payment of any Letter of Credit
Obligations then due and payable in respect of In-Line Standby Letters of Credit
and Commercial Letters of Credit; (viii) next, if, but only if any Default or
Event of Default exists, as cash Collateral (to be held by the Collateral Agent
for the benefit of the respective Issuer) for any then outstanding Letter of
Credit Obligations which are contingent, in respect of In-Line Standby Letters
of Credit and Commercial Letters of Credit; (ix) next, to the Lenders in payment
of accrued interest and Fees then due and payable in respect of the Loans and
any other Obligations then outstanding; (x) next, to the payment of (A)
principal of the Loans then outstanding, (B) any Letter of Credit Obligations
then due and payable arising in respect of the Prudential Notes Standby Letter
of Credit and the Pike Facility Bonds Standby Letter of Credit and, if any
Default or Event of Default then exists, as cash Collateral for any Letter of
Credit Obligations arising in respect of the Prudential Notes Standby Letter of
Credit and the Pike Facility Bonds Standby Letter of Credit which are
contingent; and (C) any Obligations then due and owing in respect of Interest
Rate Protection Agreements having a stated maturity date of five (5) years or
less from date of execution; (xi) lastly, to any other Obligations then due and
payable. The allocations set forth in this SECTION 2.11(d) are solely to
determine the rights and priorities of the Agents, the Issuers and the Lenders
as among themselves and may be changed by the Agents, the Issuers and the
Lenders without notice to or the consent or approval of the Borrower or any
other Person.
SECTION 2.12. Computation of Interest and Fees. Interest on
Base Rate Loans shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the first day but excluding the
last day). Interest on Euro-Dollar Loans will be computed on the basis of a year
of 360 days and paid for the actual number of days elapsed, calculated as to
each Interest Period from and including the first day thereof to but excluding
the last day thereof. Commitment fees and any other fees payable hereunder shall
be computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
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SECTION 2.13. All Loans to Constitute One Obligation. The
Loans and all other extensions of credit and other financial accommodations at
any time made pursuant hereto shall constitute one general obligation of the
Obligors, jointly and severally, and shall be secured by the Liens on the
Collateral in favor of the Collateral Agent; provided, however, that each of the
Agents, the Issuers and the Lenders shall be deemed to be a creditor of each
Obligor and the holder of a separate claim against each Obligor to the extent of
all Obligations owed by each Obligor to such Agent, Issuer or Lender.
SECTION 2.14. Reimbursement Obligations Generally; Duties of
Issuers.
(a) Reimbursement. Subject, in the case of Wachovia, to
any provisions to the contrary in any Letter of Credit Application Agreement in
respect of the Prudential Notes Standby Letter of Credit or any Commercial
Letters of Credit:
(i) the Borrower shall reimburse the Issuer for
drawings under a Letter of Credit issued by it no later than the
earlier of (A) the time specified in such Letter of Credit Application
Agreement, or (B) one (1) Domestic Business Day after the payment by
the Issuer;
(ii) any Reimbursement Obligation with respect to
any Letter of Credit shall bear interest from the date of the relevant
drawing under the pertinent Letter of Credit until the date of payment
in full thereof at a rate per annum equal to (A) prior to the date that
is three (3) Domestic Business Days after the date of the related
payment by the Issuer, the Base Rate plus the Applicable Margin and (B)
thereafter, the Default Rate; and
(iii) in order to implement the foregoing, upon
the occurrence of a draw under any Letter of Credit, unless the Issuer
is reimbursed in accordance with subsection (i) above or the date when
due, the Borrower irrevocably authorizes the Administrative Agent to
treat such nonpayment as a Notice of Borrowing in the amount of such
Reimbursement Obligation and to make Revolving Loans to Borrower in
such amount regardless of whether the conditions precedent to the
making of Revolving Loans hereunder have been met. Each Borrower
further authorizes the Administrative Agent to credit the proceeds of
such Revolving Loan to the Issuer of such Letter of Credit so as to
immediately eliminate the liability of the Borrower for Reimbursement
Obligations under such Letter of Credit.
(b) Duties of Issuer. Any action taken or omitted to be
taken by an Issuer in connection with any Letter of Credit, if taken or omitted
in the absence of willful misconduct or gross negligence, shall not put the
Issuer under any resulting liability to any Lender. In determining whether to
pay under any Letter of Credit, the Issuer shall have no obligation relative to
the Agents or the Lenders other than to confirm that any documents required to
have been delivered under such Letter of Credit appear to comply on their face
with the requirements of such Letter of Credit.
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SECTION 2.15. Participations in Certain Letter of Credit
Obligations.
(a) Purchase of Participations. Immediately upon issuance
by the Administrative Agent of any In-Line Standby Letter of Credit in
accordance with the procedures set forth in SECTION 2.01(b) and by the Special
Issuer of the Pike Facility Bond Standby Letter of Credit, in accordance with
the procedures set forth in SECTION 2.01(d), each Lender shall be deemed to have
irrevocably and unconditionally purchased and received from such Issuer, without
recourse or warranty, an undivided interest and participation, to the extent of
such Lender's pro rata share, in such Letter of Credit; provided, that any
In-Line Standby Letter of Credit shall not be entitled to the benefits of this
SECTION if the Administrative Agent shall have received written notice from any
Lender on or before the Domestic Business Day immediately prior to the date of
the issuance of such Letter of Credit that one or more of the conditions
contained in SECTION 2.01(b) is not then satisfied, and, in the event the
Administrative Agent receives such a notice, it shall have no further obligation
to issue any such Letter of Credit until such notice is withdrawn by that Lender
or until the Required Lenders have effectively waived compliance with such
condition in accordance with the provisions of this Agreement.
(b) Sharing of Letter of Credit Payments. In the event
that an Issuer makes any payment under any Letter of Credit for which the
Borrower shall not have repaid such amount to the Issuer pursuant to SECTION
2.15(a) or which cannot be paid by a Revolving Loan pursuant to subsection (iii)
of SECTION 2.14(a), excluding however, the Prudential Notes Letter of Credit and
each Commercial Letter of Credit, the Issuer shall notify the Administrative
Agent and the Administrative Agent shall promptly notify each Lender of such
failure, and each Lender shall promptly and unconditionally pay to the Issuer
such Lender's pro rata share of the amount of such payment in Dollars and in
same day funds. If the Administrative Agent so notifies such Lender prior to
10:00 A.M. (Atlanta, Georgia time) on any Domestic Business Day, such Lender
shall make available to the Administrative Agent its pro rata share of the
amount of such payment on such Domestic Business Day in same day funds. If and
to the extent such Lender shall not have so made its pro rata share of the
amount of such payment available to the Issuer, such Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date such payment was first due until the date
such amount is paid to Issuer at the Federal Funds Rate for the three (3) days
and thereafter at the Base Rate. The failure of any Lender to make available to
the Issuer its pro rata share of any such payment shall neither relieve nor
increase the obligation of any other Lender hereunder to make available to the
Issuer its pro rata share of any payment on the date such payment is to be made.
(c) Sharing of Reimbursement Obligation Payments.
Whenever an Issuer receives a payment on account of a Reimbursement Obligation,
including any interest thereon, whether from the Borrower or any third Person
(including any beneficiary which, theretofore, received any payment under a
Letter of Credit from the Issuer in error), as to which the Issuer has received
any payments from the Lenders pursuant to this SECTION 2.15, it shall promptly
pay to the Administrative Agent for the benefit of each Lender which has funded
its participating interest therein, in Dollars and in the kind of funds so
received, an amount equal to such Lender's
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pro rata share thereof; otherwise, such Issuer shall be entitled to apply the
entire amount of such payment directly to such Reimbursement Obligations. Each
such payment shall be made by the Administrative Agent on the Domestic Business
Day on which the funds are paid to such Person, if received prior to 10:00 am.
(Atlanta, Georgia time) on such Domestic Business Day, and otherwise on the next
succeeding Domestic Business Day.
(d) Documentation. Upon the request of any Lender, the
Issuer shall furnish to such Lender copies of any Letter of Credit, Letter of
Credit Application Agreement and other documentation relating to Letters of
Credit issued pursuant to this Agreement.
(e) Obligations Irrevocable. The obligations of the
Lenders to make payments to an Issuer with respect to certain Letters of Credit
pursuant to SECTION 2.15(b) shall be irrevocable, not subject to any
qualification or exception whatsoever and shall be made in accordance with, but
not subject to, the terms and conditions of this Agreement under all
circumstances (assuming, in the case of In-Line Standby Letters of Credit, that
the Administrative Agent has issued such Letter of Credit in accordance with
SECTION 2.01(b) and such Lender has not given a notice contemplated by SECTION
2.15(b) that continues in full force and effect), including, without limitation,
any of the following circumstances: (i) any lack of validity or enforceability
of this Agreement or any of the other Credit Documents; (ii) the existence of
any claim, set-off, defense or other right which the Borrower may have at any
time against a beneficiary named in a Letter of Credit or any transferee of any
Letter of Credit (or any Person for whom any such transferee may be acting), the
Issuer, any Lender or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated herein or any
unrelated transactions; (iii) any draft, certificate or any other document
presented under the Letter of Credit proves to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect; (iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit Documents;
(v) payment by the Issuer under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; (vi) payment by the Issuer under any
Letter of Credit against presentation of any draft or certificate that does not
comply with the terms of such Letter of Credit, except payment resulting from
the gross negligence or willful misconduct of the Issuer; or (vii) any other
circumstances or happenings whatsoever, whether or not similar to any of the
foregoing, except circumstances or happenings resulting from the gross
negligence or willful misconduct of an Issuer, as to that Issuer.
SECTION 2.16. Payment of Reimbursement Obligations.
(a) Payments to the Issuer. The Borrower agrees to pay to each
Issuer the amount of all Reimbursement Obligations, interest and other amounts
payable to such Issuer under or in connection with any Letter of Credit issued
for the Borrower's account immediately when due, irrespective of: (i) any lack
of validity or enforceability of this Agreement or any of the other Credit
Documents; (ii) the existence of any claim, set-off, defense or other right
which the Borrower may have at any time against a beneficiary named in a Letter
of Credit or any transferee of any Letter of Credit (or any Person for whom any
such transferee may be acting), the Issuer, any Agent, any Lender or any other
Person, whether in connection with this
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Agreement, any Letter of Credit, the transactions contemplated herein or any
unrelated transactions; (iii) any draft, certificate or any other document
presented under the Letter of Credit proves to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect; (iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit Documents;
(v) payment by the Issuer under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; (vi) payment by the Issuer under any
Letter of Credit against presentation of any draft or certificate that does not
comply with the terms of such Letter of Credit, except payment resulting from
the gross negligence or willful misconduct of the Issuer; or (vii) any other
circumstances or happenings whatsoever, whether or not similar to any of the
foregoing, except circumstances or happenings resulting from the gross
negligence or willful misconduct of the Issuer.
(b) Recovery or Avoidance of Payments. In the event any
payment by or on behalf of the Borrower received by the Issuer with respect to a
Letter of Credit and distributed by an Issuer to the Lenders on account of their
participations is thereafter set aside, avoided or recovered from the Issuer in
connection with any receivership, liquidation or bankruptcy proceeding, each
Lender that received such distribution shall, upon demand by such Issuer,
contribute such Lender's pro rata share of the amount set aside, avoided or
recovered together with interest at the rate required to be paid by the Issuer
upon the amount required to be repaid by it, to such Issuer.
SECTION 2.17. Indemnification and Exoneration in Respect of
Letters of Credit.
(a) Indemnification. The Borrower shall protect,
indemnify, pay and save the Issuers, the Agents and each Lender harmless from
and against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys' fees) which an Issuer, an
Agent or any Lender may incur or be subject to as a consequence of the issuance
of any Letter of Credit for a Borrower's or any subsidiary's account other than
as a result of its gross negligence or willful misconduct, as determined by a
court of competent jurisdiction.
(b) Assumption of Risk by the Borrower. As between the
Borrower, the Issuers, the Agents and the Lenders, the Borrower assumes all
risks of the acts and omissions of, or misuse of any Letters of Credit issued
for such Borrower's or any subsidiary's account by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in limitation of the
foregoing, neither the Issuer, nor any Agent, nor any Lender shall be
responsible for (i) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for and issuance of the Letters of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged, (ii) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason, (iii) failure of the beneficiary of
a Letter of Credit to comply duly with conditions required in order to draw upon
such Letter of Credit, (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher, for errors in
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interpretation of technical terms, (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any Letter
of Credit or of the proceeds thereof, (vii) the misapplication by the
beneficiary of a Letter of Credit of the proceeds of any drawing under such
Letter of Credit; and (viii) any consequences arising from causes beyond the
control of the Issuer, any Agent or any Lender.
(c) Exoneration. In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth, any action taken or
omitted by any Issuer under or in connection with the Letters of Credit or any
related certificates if taken or omitted in good faith and with reasonable care,
shall not put any Issuer, any Agent or any Lender under any resulting liability
to the Borrower or relieve the Borrower of any of their obligations hereunder to
any such Person.
SECTION 2.18 Subsidiary Guaranty.
(a) The Guaranty: Each of the Subsidiary Guarantors
hereby jointly and severally guarantees to the Agents, the Issuers and the
Lenders the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the Obligations of the Borrower (such Obligations
herein called, collectively, the "Guaranteed Obligations"), in each case
strictly in accordance with the terms thereof. Each of the Subsidiary Guarantors
hereby further jointly and severally agrees that if the Borrower shall fail to
pay in full when due (whether at stated maturity, by acceleration or otherwise)
any of the Guaranteed Obligations, the Subsidiary Guarantors will promptly pay
the same, without the demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Guaranteed Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
by acceleration or otherwise) in accordance with the terms of such extension or
renewal.
(b) Obligations Unconditional. The obligations of the
Subsidiary Guarantors hereunder are absolute and unconditional, joint and
several, irrespective of the value, genuineness, validity, regularity or
enforceability of the Obligations of the Borrower under this Agreement, the
Notes or any other Loan Document or any substitution, release or exchange of any
other guarantee of or security for any of the Guaranteed Obligations, and, to
the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
SECTION that the obligations of the Subsidiary Guarantors hereunder shall be
absolute and unconditional, joint and several, under and all circumstances.
Without limiting the generality of the foregoing, it is agreed that the
occurrence of any one or more of the following shall not alter or impair the
liability of the Subsidiary Guarantors hereunder which shall remain absolute and
unconditional as described above.
(i) at any time or from time to time, without notice to
any of the Subsidiary Guarantors, the time for any performance of
or compliance with any of the Guaranteed Obligations shall be
extended, or such performance or compliance shall be waived;
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(ii) any of the acts mentioned in any of the
provisions of this Agreement or the Notes or any other
agreement or instrument referred to herein or therein shall be
done or omitted:
(iii) the maturity of any of the Guaranteed
Obligations shall be accelerated, or any of the Guaranteed
Obligations shall be modified, supplemented or amended in any
respect, or any right under this Agreement or the Notes or any
other Loan Document shall be waived or any other guarantee of
any of the Guaranteed Obligations or any security therefor
shall be released or exchanged in whole or in part or
otherwise dealt with; or
(iv) any lien or security interest granted to, or
in favor of, the Collateral Agent as security for any of the
Obligations shall fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever; any requirement that any Issuer,
Agent or Lender exhaust any right, power or remedy or proceed against the
Borrower under this Agreement or the Notes or any other Loan Document, or
against any other Person under any other Guaranty of, or security for, any of
the Guaranteed Obligations; any right arising pursuant to Official Code of
Georgia Section 10-7-24 or any other similar or subsequent law; and any right to
assert any of the benefits under any statute providing appraisal or other,
similar rights which may reduce or prohibit any deficiency judgments or claims.
(c) Reinstatement. The obligations of the Subsidiary
Guarantors hereunder shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of the Borrower in respect to the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise and the Subsidiary Guarantors jointly
and severally agree that they will indemnify each Agent, Issuer and Lender on
demand for all reasonable costs and expenses (including, without limitation,
fees of counsel) incurred by such Agent, Issuer and Lender in connection with
such rescission or restoration, including any such costs and expenses incurred
in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
(d) Subrogation. Each Subsidiary Guarantor hereby waives
all rights of subrogation or contribution, whether arising by contract or
operation of law (including, without limitation, any such right arising under
the Bankruptcy Code) or otherwise by reason of any payment by it pursuant to the
provisions hereof and further agrees with the Borrower for the benefit of each
of its creditors (including, without limitation, each Agent, Issuer and Lender)
that any such payment by it shall constitute a contribution of capital by such
Subsidiary Guarantor to the Borrower (or an investment in the equity capital of
the Borrower by such Subsidiary Guarantor).
(e) Remedies. The Subsidiary Guarantors jointly and
severally agree that, as between the Subsidiary Guarantors and the Agents, the
Issuers and the Lenders, the Guaranteed
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Obligations may be declared to be forthwith due and payable as provided herein
(and shall be deemed to have become automatically due and payable in the
circumstances provided herein) for purposes hereof, notwithstanding any stay,
injunction or other prohibition preventing such declaration (or such obligations
from becoming automatically due and payable) as against the Borrower and that,
in the event of such declaration (whether or not due and payable by the
Borrower) shall forthwith become due and payable by the Subsidiary Guarantors
for purposes hereof.
(f) Continuing Guaranty. The guaranty set forth herein is
a continuing guaranty, and shall apply to all Guaranteed Obligations, whenever
and howsoever arising.
(g) Rights of Contribution. The Subsidiary Guarantors
hereby agree, as between themselves, that if any Subsidiary Guarantor shall
become an "Excess Funding Guarantor" (as defined below) by reason of the payment
by Subsidiary Guarantor of any Guaranteed Obligations, each other Subsidiary
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
next sentence), pay to such Excess Funding Guarantor an amount equal to such
Subsidiary Guarantor's "Pro Rata Share" (as defined below and determined, for
this purpose, without reference to the properties, debts and liabilities of such
Excess Funding Guarantor) of the "Excess Payment" (as defined below) in respect
of such Guaranteed Obligations. The payment obligation of a Subsidiary Guarantor
to any Excess Funding Guarantor under this Section shall be subordinate and
subject to right of payment to the prior payment in full of the obligations of
such Subsidiary Guarantor under the other provisions of this Section 2.4 and
such Excess Funding Guarantor shall not exercise any right or remedy with
respect to such excess until payment and satisfaction in full of all such
obligations. For purposes hereof, (i) "Excess Funding Guarantor" means, in
respect of any guaranteed Obligations, a Subsidiary Guarantor that has paid an
amount in excess of its Pro Rata Share of such Guaranteed Obligations, (ii)
"Excess Payment" means, in respect of any guaranteed Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations (iii) "Pro Rata Share" means, for any Subsidiary
Guarantor, the ratio (express as a percentage) of (x) the amount by which the
aggregate present fair saleable value of all Properties of such Subsidiary
Guarantor (excluding any shares of stock of any other Subsidiary Guarantor)
exceeds the amount of all the debts and liabilities of such Subsidiary Guarantor
(including contingent, subordinate, unmatured and unliquidated liabilities, but
excluding the obligations of such Subsidiary Guarantor hereunder and any
obligations of any other Subsidiary Guarantor that have been Guaranteed by such
Subsidiary Guarantor) to (y) the amount by which the aggregate fair saleable
value of all Properties of all of the Subsidiary Guarantors exceeds the amount
of all debts and liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of the Subsidiary
Guarantor hereunder) of the Subsidiary Guarantors, determined (A) with respect
to any Subsidiary Guarantor that is a party hereto on the Closing Date, as of
the Closing Date, and (B) with respect to any other Subsidiary Guarantor, as of
the date such Subsidiary Guarantor becomes a Subsidiary Guarantor hereunder.
(h) General Limitation on Guaranteed Obligations. In any
action or proceeding involving any state corporate law, or any state or federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of the Subsidiary Guarantors hereunder
would otherwise, be held to determined to be void, invalid or
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unenforceable, or subordinated to the claims of any other creditors, on account
of the amount of its liability hereunder, then, notwithstanding any other
provision hereof to the contrary, the amount of such liability shall, without
any further action by any Subsidiary Guarantor, the Agents, the Issuers, the
Lenders or any other Person, be automatically limited and reduced to the highest
amount that is valid and enforceable and not subordinated to the claims of other
creditors a determined in such action or proceeding.
ARTICLE 3
COLLATERAL
SECTION 3.01. Grant of Security Interest. As security for the
payment of all Obligations, each Obligor hereby grants to the Collateral Agent,
for the ratable benefit of the Issuers, the Agents and the Lenders, a
continuing, general Lien upon and security interest and security title in and to
the following described property of such Obligor, wherever located, whether now
existing or hereafter acquired or arising, namely: (a) the Accounts Receivable
Collateral; (b) the Inventory Collateral; (c) the Equipment Collateral; (d) the
Intangibles Collateral; (e) the Balances Collateral; and (f) all products and/or
proceeds of any and all of the foregoing, including, without limitation,
insurance proceeds.
SECTION 3.02. Lockbox; Collateral Reserve Account. On the
Closing Date, the Borrower shall establish and continually maintain either with
the Collateral Agent or one or more of the Lenders (in trust for the benefit of
the Collateral Agent) one or more Collateral Reserve Accounts and lockboxes into
which each Obligor shall cause each Account Debtor to remit all cash, checks,
drafts, items and other instruments for the payment of money which it now has or
may at any time hereafter receive in full or partial payment for the Inventory
Collateral or otherwise as proceeds of the Accounts Receivable Collateral. In
addition, if the Borrower or any Subsidiary receives Net Cash Proceeds of
dispositions of assets or of the issuance of Capital Stock or the incurrence of
Debt for money borrowed (except Debt secured by Purchase Money Liens), or Net
Casualty/Insurance Proceeds, it shall (or shall cause such other Person
receiving such cash proceeds to) remit all such cash proceeds to a Collateral
Reserve Account. In the event such items of payment are inadvertently received
by any the Borrower, any other Obligor, any Subsidiary or any other Person, such
Person shall be deemed to hold the same in trust for the benefit of the
Collateral Agent and promptly cause same to be forwarded to the Collateral
Reserve Account. The Collateral Agent or each Lender, as appropriate, will
remove from the lockboxes and deposit all such items of payment received from
such Account Debtors into the Collateral Reserve Account promptly upon receipt.
Unless and until (i) a Default or Event of Default is in existence, (ii) the
Borrower is advised in writing by the Collateral Agent of a different
arrangement selected by the Collateral Agent (as directed by the Required
Lenders), or (iii) Excess Borrowing Availability, determined without regard to
the reserve to the Borrowing Base imposed pursuant to clause (x) of the
definition thereof, is less than Five Million Dollars ($5,000,000), the
Collateral Agent will transfer on each Domestic Business Day collected amounts
in the Collateral Reserve Account to the Borrower's operating account; provided,
however, that Net Cash Proceeds of dispositions of assets or of the issuance of
Capital Stock or the incurrence of Debt for money borrowed (except Debt secured
by Purchase Money Liens) and
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Net Casualty/Insurance Proceeds shall be held subject to the provisions of
SECTION 2.10(c), and any Net Cash Proceeds or Net Casualty/Insurance Proceeds
not required to be paid to the Collateral Agent for the account of the Lenders
pursuant to SECTION 2.10(c) shall be paid to the Borrower on the date such
payment is made for the account of the Lenders. During the existence of any
condition specified in clause (i) in this SECTION, (i) the Administrative Agent
shall, at the direction of the Required Lenders, apply collected amounts in the
Collateral Reserve Account as set forth in SECTION 2.11(d), but otherwise such
amounts shall be applied in the manner prescribed in the last sentence of
Section 3.02, and (ii) the Collateral Agent may, additionally, at any time in
its sole discretion or if requested in writing by the Required Lenders, direct
Account Debtors to make payments on the Accounts Receivable Collateral, or
portions thereof, directly to the Collateral Agent, and the Account Debtors are
hereby authorized and directed to do so by each Borrower upon the Collateral
Agent's direction, and the funds so received shall be also deposited in the
Collateral Reserve Account, or, at the election of the Collateral Agent, upon
its receipt thereof, be applied directly to repayment of the Obligations as set
forth in SECTION 2.11(d). During the existence of any condition specified in
clauses (i) (except as otherwise expressly provided above), (ii) or (iii) in
this SECTION, the Administrative Agent will apply collected amounts in the
Collateral Reserve Account to Revolving Loans then outstanding and Letter of
Credit Obligations in respect of In-Line Standby Letters of Credit and
Commercial Letters of Credit then due and payable, pro rata among such
Obligations based on the proportion which it bears to the total amount thereof.
SECTION 3.03. Further Assurances. Each Obligor shall duly
execute and/or deliver (or cause to be duly executed and/or delivered) to the
Collateral Agent any instrument, agreement, invoice, document, document of
title, dock warrant, dock receipt, warehouse receipt, bill of lading, order,
financing statement, assignment, waiver, consent or other writing which may be
reasonably necessary to the Collateral Agent to carry out the terms of this
Agreement and any of the other Credit Documents and to perfect its security
interest or intended security interest in and facilitate the collection of the
Collateral, the proceeds thereof, and any other property at any time
constituting security or intended to constitute security to the Collateral
Agent. The Borrower shall perform or cause to be performed such acts as the
Collateral Agent may request to establish and maintain for the Collateral Agent
a valid and perfected security interest in and security title to the Collateral,
free and clear of any Liens other than Permitted Encumbrances.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Issuers, the
Agents and the Lenders that:
SECTION 4.01. Corporate Existence and Power. Each of the
Borrower and each Subsidiary is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation, is
duly qualified to transact business in every jurisdiction where, by the nature
of its business, such qualification is necessary (as set forth on
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SCHEDULE 4.01), and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, except where any such failure to qualify or have all required
governmental licenses, authorizations, consents and approvals does not have and
would not reasonably be expected to cause a Material Adverse Effect and would
not impede any rights of the Collateral Agent with respect to the Collateral.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower and each
Subsidiary Guarantor of this Agreement, and by the Borrower and each Subsidiary
Guarantor party thereto of the other Credit Documents (i) are within the
Borrower's and each such Subsidiary's corporate powers, (ii) have been duly
authorized by all necessary corporate action on the part of the Borrower and
such Subsidiary, and have been executed on behalf of the Borrower and such
Subsidiary by its respective duly authorized officers, (iii) require no action
by or in respect of or filing with, any governmental body, agency or official,
(iv) do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the articles of incorporation or by-laws of
the Borrower or any such Subsidiary or of any agreement, judgment, injunction,
order, decree or other instrument binding upon the Borrower or such Subsidiary,
and (v) do not and will not result in the creation or imposition of any Lien on
any asset of the Borrower or any of such Subsidiaries (except in favor of the
Collateral Agent).
SECTION 4.03. Binding Effect. This Agreement constitutes a
valid and binding agreement of the Borrower enforceable in accordance with its
terms, and the other Credit Documents constitutes valid and binding obligations
of the Borrower and each such Subsidiary Guarantor party thereto enforceable in
accordance with their respective terms, provided that the enforceability hereof
and thereof is subject in each case to general principles of equity and to
bankruptcy, insolvency and similar laws affecting the enforcement of creditors'
rights generally.
SECTION 4.04. Financial Information. (a) The (i) audited (x)
consolidated financial statements (including the balance sheet and statements of
income, shareholders' equity and cash flows) of the Borrower and its
Consolidated Subsidiaries, and (y) consolidating financial statements (including
the balance sheet and statements of income, shareholders' equity and cash flows)
of the Borrower and all Subsidiaries, in each case for the Fiscal Year ending on
June 28, 1997 and in each case reported on by its certified public accountants,
copies of which have been delivered to each of the Lenders, and (ii) unaudited
(x) consolidated financial statements (including the balance sheet and
statements of income, shareholders' equity and cash flows) of the Borrower and
its Consolidated Subsidiaries, and (y) consolidating financial statements
(including the balance sheet and statements of income, shareholders' equity and
cash flows) of the Borrower and all Subsidiaries, in each case for the interim
period ended March 28, 1998, copies of which have been delivered to each of the
Lenders, fairly present, in conformity with GAAP, the consolidated financial
position of the Borrower and its Consolidated Subsidiaries or the consolidating
financial position of the Borrower and the Subsidiaries, as the case may be, as
of such dates and their consolidated or consolidating results of operations and
cash flows for such periods stated.
(b) Since March 28, 1998, there has been no event, act,
condition or occurrence having a Material Adverse Effect.
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SECTION 4.05. No Litigation. Except as disclosed in SCHEDULE
4.05, there is no action, suit or proceeding pending, or to the knowledge of the
Borrower threatened, against or affecting the Borrower or any of the
Subsidiaries before any court or arbitrator or any governmental body, agency or
official which could reasonably be expected to have a Material Adverse Effect.
SECTION 4.06. Compliance with ERISA. The Borrower and each
member of the Controlled Group have fulfilled their obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan and
are in compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and have not incurred any liability to the
PBGC or a Plan under Title IV of ERISA. Neither the Borrower nor any member of
the Controlled Group is or ever has been obligated to contribute to any
Multiemployer Plan.
SECTION 4.07. Compliance with Laws; Payment of Taxes. The
Borrower and the Subsidiaries are in material compliance with all applicable
laws, regulations and similar requirements of governmental authorities
(including, without limitation, the Fair Labor Standards Act of 1938, as
amended), except as set forth in SECTION 4.14 or where such compliance is being
contested in good faith through appropriate proceedings, and except where any
such failure to comply (other than with respect to the Fair Labor Standards Act
of 1938, as amended) does not have and would not reasonably be expected to cause
a Material Adverse Effect and would not impede any rights of the Collateral
Agent with respect to the Collateral and the Borrower has adopted and continues
to follow a compliance program satisfactory to assure the accuracy of the
foregoing statement. There have been filed on behalf of the Borrower and its
Subsidiaries all federal, state and local income, excise, property and other tax
returns which are required to be filed by them and all taxes due pursuant to
such returns or pursuant to any assessment received by or on behalf of the
Borrower or any such Subsidiary have been paid. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of taxes
or other governmental charges are, in the opinion of the Borrower, adequate. No
United States income tax returns of the Borrower or any Subsidiaries which have
been examined through the Closing Date are, to the Borrower's knowledge, the
subject of any present dispute with the Internal Revenue Service.
SECTION 4.08. Force Majeure. None of the Borrower's nor any of
the Subsidiaries' respective businesses is suffering from effects of fire,
accident, strike, drought, storm, earthquake, embargo, tornado, hurricane, act
of God, acts of a public enemy or other casualty that could reasonably be
expected to have a Material Adverse Effect.
SECTION 4.09. Investment Company Act. Neither the Borrower nor
any of the Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 4.10. Public Utility Holding Company Act. Neither the
Borrower nor any of the Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
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SECTION 4.11. Ownership of Property; Liens. Each of the
Borrower and the Subsidiaries has title to its properties sufficient for the
conduct of its business, and none of such property is subject to any Lien except
as permitted in SECTION 5.18.
SECTION 4.12. No Default. Neither the Borrower nor any of the
Subsidiaries is in default under or with respect to any agreement, instrument or
undertaking to which it is a party or by which it or any of its property is
bound which could have or cause a Material Adverse Effect. No Default or Event
of Default has occurred and is continuing.
SECTION 4.13. Full Disclosure. All information heretofore
furnished by the Borrower to any Issuer, any Agent or any Lender for purposes of
or in connection with this Agreement or any transaction contemplated hereby is,
and all such information hereafter furnished by the Borrower or any Subsidiary
to any Issuer, any Agent or any Lender will be, true, accurate and complete in
every material respect or based on reasonable estimates on the date as of which
such information is stated or certified. The Borrower has disclosed to the
Lenders in writing any and all facts which could have or cause a Material
Adverse Effect.
SECTION 4.14. Environmental Matters. Except as disclosed in
SCHEDULE 4.14: (a) Neither the Borrower nor any Subsidiary is subject to any
Environmental Liability which could reasonably be expected to have or cause a
Material Adverse Effect and neither the Borrower nor any Subsidiary has been
designated as a potentially responsible party under CERCLA or under any state
statute similar to CERCLA. None of the real property owned, leased or operated
by the Borrower or any Subsidiary (collectively, the "Aggregate Real
Properties") has been identified on any current or proposed (i) National
Priorities List under 40 C.F.R. ss. 300, (ii) CERCLIS list or (iii) any list
arising from a state statute similar to CERCLA.
(b) No Hazardous Materials have been or are being used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed or otherwise handled at, or shipped or transported to or
from the Aggregate Real Properties or are otherwise present at, on, in or under
the Aggregate Real Properties, or, to the best of the knowledge of the Borrower,
at or from any adjacent site or facility, except for Hazardous Materials, such
as cleaning solvents, pesticides and other materials used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed of,
managed, or otherwise handled in minimal amounts in the ordinary course of
business in substantial compliance with all applicable Environmental
Requirements.
(c) The Borrower and each of the Subsidiaries have
procured all Environmental Authorizations necessary for the conduct of its
business, and is in substantial compliance with all Environmental Requirements
in connection with the operation of the Aggregate Real Properties and the
Borrower's and each of the Subsidiary's respective businesses.
SECTION 4.15. Capital Stock. All Capital Stock, debentures,
bonds, notes and all other securities of the Borrower and the Subsidiaries
presently issued and outstanding are validly and properly issued in accordance
with all applicable laws, including, but not limited to, the "blue sky" laws of
all applicable states and the federal securities laws, or for which the
applicable statute of limitations has expired. The issued shares of Capital
Stock of the
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Borrower's Wholly Owned Subsidiaries are owned by the Borrower free and clear of
any Lien or adverse claim. At least a majority of the issued shares of capital
stock of each of the Borrower's other Subsidiaries (other than Wholly Owned
Subsidiaries) is owned by the Borrower free and clear of any Lien or adverse
claim.
SECTION 4.16. Margin Stock. Neither the Borrower nor any of
the Subsidiaries is engaged principally, or as one of its important activities,
in the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Loan will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock, or be used for any purpose which violates, or which is inconsistent with,
the provisions of Regulation T, U or X.
SECTION 4.17. Insolvency. After giving effect to the execution
and delivery of the Credit Documents and the incurrence of the Obligations under
this Agreement: (i) neither the Borrower nor any Subsidiary will (x) be
"insolvent," within the meaning of such term as used in O.C.G.A. ss. 18-2-22 or
as defined in ss. 101 of the Bankruptcy Code, or SECTION 2 of either the "UFTA"
or the "UFCA", or as defined or used in any "Other Applicable Law" (as those
terms are defined below), or (y) be unable to pay its debts generally as such
debts become due within the meaning of SECTION 548 of the Bankruptcy Code,
SECTION 4 of the UFTA or SECTION 6 of the UFCA, or (z) have an unreasonably
small capital to engage in any business or transaction, whether current or
contemplated, within the meaning of SECTION 548 of the Bankruptcy Code, SECTION
4 of the UFTA or SECTION 5 of the UFCA; and (ii) the Obligations of the Borrower
under the Credit Documents will not be rendered avoidable under any Other
Applicable Law. For purposes of this SECTION 4.17, "UFTA" means the Uniform
Fraudulent Transfer Act, "UFCA" means the Uniform Fraudulent Conveyance Act, and
"Other Applicable Law" means any other applicable law pertaining to fraudulent
transfers or acts voidable by creditors, in each case as such law may be amended
from time to time.
SECTION 4.18. Insurance. The Borrower and each of the
Subsidiaries have (either in the name of such Borrower or in such Subsidiary's
own name), with financially sound and reputable insurance companies and with a
Best's Rating of at least "A", insurance in at least such amounts and against at
least such risks (including on all its property, and business interruption,
public liability and worker's compensation, to the extent not self insured as to
worker's compensation) as are usually insured against in the same general area
by companies of established repute engaged in the same or similar business.
SECTION 4.19. Possession of Permits. Each Borrower and each
Subsidiary possess all franchises, certificates, licenses, permits and other
authorizations from governmental political subdivisions or regulatory
authorities, and all patents, trademarks, service marks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, that
are necessary for the ownership, maintenance and operation of any of its
properties and assets, and no Borrower or Subsidiary is in violation of any
thereof except where any such failure to possess any of the foregoing does not
have and would not reasonably be expected to cause a Material Adverse Effect and
would not impede any rights of the Collateral Agent with respect to the
Collateral.
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SECTION 4.20. Labor Disputes. Except as disclosed in SCHEDULE
4.20, (i) there is no collective bargaining agreement or other labor contract
covering employees of the Borrower or any Subsidiary, (ii) no such collective
bargaining agreement or other labor contract is scheduled to expire during the
term of this Agreement, (iii) no union or other labor organization is seeking to
organize, or to be recognized as, a collective bargaining unit of employees of
any of the Borrower or any Subsidiary or for any similar purpose and (iv) there
is no pending, or to the Borrower's knowledge, threatened, strike, work
stoppage, material unfair labor practice claim, or other material labor dispute
against or affecting any Borrower or any Subsidiary or their respective
employees.
SECTION 4.21. Surety Obligations. Except as shown on SCHEDULE
4.21 hereto, neither the Borrower nor any of the Subsidiaries is obligated as
surety or indemnitor under any surety or similar bond or other contract issued
or entered into to assure payment, performance or completion of performance of
any undertaking or obligation of any Person.
SECTION 4.22. Restrictions. Neither the Borrower nor any of
the Subsidiaries is a party or subject to any contract, agreement, or charter or
other corporate restriction, which materially and adversely affects its business
or the use or ownership of any of its assets. Except as set forth on SCHEDULE
4.22 hereto, neither the Borrower nor any of the Subsidiaries is a party or
subject to any contract or agreement which restricts its right or ability to
incur Debt, none of which prohibit the execution of or compliance with this
Agreement or the other Credit Documents by the Borrower or any of the
Subsidiaries, as applicable.
SECTION 4.23. Leases. SCHEDULE 4.23 hereto is a complete
listing of all capitalized and operating leases of the Borrower and the
Subsidiaries as of the Closing Date. Each of the Borrower and the Subsidiaries
is in compliance in all material respects with all of the terms of each of its
respective capitalized and operating leases.
SECTION 4.24. Trade Relations. There exists no present
condition or state of facts or circumstances which would materially affect
adversely the Borrower or any of the Subsidiaries or prevent the Borrower or any
of the Subsidiaries from conducting its business after the consummation of the
transactions contemplated by this Agreement in substantially the same manner in
which they have heretofore been conducted, and, to the best of the Borrower's
knowledge, there exists no actual or threatened termination, cancellation or
limitation of, or any modification or change in, the business relationship
between the Borrower or any of the Subsidiaries and any customer or any group of
customers whose purchases individually or in the aggregate are material to the
business of the Borrower or any of the Subsidiaries, or with any material
supplier.
SECTION 4.25. Capital Structure. As of the date hereof,
SCHEDULE 4.25 hereto states (i) the correct name of each of the Subsidiaries of
Borrower (which, as of the Closing Date, is limited to FSC), its jurisdiction of
incorporation and the percentage of its Capital Stock owned by the Borrower,
(ii) the name of each of the Borrower's and the Borrower's Affiliates and the
nature of such affiliation, (iii) the number, nature and holder of all Capital
Stock of the Borrower and each Subsidiary, and (iv) the number of authorized,
issued, outstanding and treasury shares of the Borrower and each Subsidiary. The
Borrower has good
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title to all of the shares its purport to own of the Capital Stock of each of
its Subsidiaries, free and clear in each case of any Lien other than Permitted
Encumbrances. All such shares have been duly issued and are fully paid and
non-assessable.
SECTION 4.26. Y2K Plan. The Borrower has developed and
delivered to the Administrative Agent and the Lenders a comprehensive plan (the
"Y2K Plan") for insuring that the Borrower's and the Subsidiaries software and
hardware systems which impact or affect in any way the business operations of
the Borrower and the Subsidiaries will be Year 2000 Compliant and Ready. The
Borrower and the Subsidiaries have met the Y2K Plan milestones such that all
hardware and software systems will be Year 2000 Compliant and Ready in
accordance with the Y2K Plan. Each item of equipment containing embedded
microchips (including systems and equipment supplied by others or with which the
systems of the Borrower or any of their Subsidiaries interface), and the testing
of all such systems and equipment, as so reprogrammed, will be completed by
March 31, 1999.
SECTION 4.27. Federal Taxpayer Identification Number. The
Borrower's and each Subsidiary's federal taxpayer identification numbers are as
indicated on the Collateral Disclosure Certificate.
SECTION 4.28. Bona Fide Accounts. Each item of the
Accounts Receivable Collateral arises or will arise under a contract between an
Obligor and the respective Account Debtor, or from the bona fide sale or
delivery of goods to or performance of services for, the Account Debtor by such
Obligor.
SECTION 4.29. Good Title to Collateral. Each Obligor has
good title to the Collateral free and clear of all Liens, other than any
Permitted Encumbrances, and no assertable financing statement covering the
Collateral is on file in any public office other than any evidencing Permitted
Encumbrances.
SECTION 4.30. Right to Assign and Grant Security Interest.
The Borrower has full right, power and authority to make the assignment pursuant
to this Agreement of the Accounts Receivable Collateral and to grant a security
interest in all of the Collateral.
SECTION 4.31. Trade Styles. Except as may be set forth on
the Collateral Disclosure Certificate, neither the Borrower nor any Subsidiary
uses trade names or trade styles (herein, "Trade Styles") in their business
operations and warrant that the same shall continue, except for any additional
Trade Styles after the date hereof with respect to which the Borrower has given
the Collateral Agent at least thirty (30) days prior written notice thereof. In
any event, to the extent that, now or hereafter, the Borrower uses any Trade
Styles, the Borrower hereby represents and warrants in favor of the Collateral
Agent that: (i) all of the accounts receivable and proceeds with respect thereto
arising out of sales under the Trade Styles shall be the property of, and belong
to, the Borrower and shall constitute Accounts Receivable Collateral; (ii) each
of the Trade Styles is a trade name and trade style (and not an independent
corporation or other legal entity) by which the Borrower identifies and sells
certain of their products or services and under which they may conduct a portion
of their business; (iii) all accounts receivable, proceeds thereof, and returned
merchandise which arise from the sale of products invoiced under the
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names of any of the Trade Styles shall be owned solely by the Borrower and shall
be subject to the terms of this Agreement as they relate to Accounts Receivable
Collateral; and (iv) the Borrower hereby appoints the Collateral Agent as its
attorney-in-fact to file such certificates disclosing the Borrower's use of the
Trade Styles and to take such other actions on its behalf as are necessary to
comply with the statutes of any states relating to the use of fictitious or
assumed business names, to the extent that the Borrower fails to do so.
SECTION 4.32. Account Debtor Capacity and Solvency. Each
Account Debtor hereunder (a) had the capacity to contract at the time any
contract or other document giving rise to the account was executed and (b) such
Account Debtor was not and is not "insolvent" as that term is defined in SECTION
4.17.
SECTION 4.33. Proceedings with Respect to Accounts. There
are no proceedings or actions which are threatened or pending against any
Account Debtor which are reasonably likely to have a material adverse change in
such Account Debtor's financial condition or the collectibility of such account.
SECTION 4.34. Location of Collateral. As of the date
hereof, the Collateral consisting of goods of the Borrower is situated only at
one or more of the Collateral Locations.
SECTION 4.35. Material Contracts. SCHEDULE 4.35 hereto
sets forth a complete listing of all Material Contracts. Each of the Borrower
and the Subsidiaries is in compliance in all material respects with all the
terms of each such Material Contracts.
SECTION 4.36. Survival of Representations and Warranties.
The Borrower covenants, warrants and represents to the Issuers, the Agents and
the Lenders that all representations and warranties of the Borrower and the
Subsidiaries contained in this Agreement or any of the other Credit Documents
shall be true at the time of the execution of this Agreement and the other
Credit Documents, and shall survive the execution, delivery and acceptance
thereof by the Documentation Agent and the parties thereto and the closing of
the transactions described therein or related thereto.
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any Lender has any
Commitment hereunder or any amount payable hereunder or any of the Obligations
remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to
each of the Lenders:
(a) as soon as available and in any event within ninety
(90) days after the end of each Fiscal Year, audited (i) consolidated
financial statements (including the balance sheet and statements of
income, shareholders' equity and cash flows) of the Borrower
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and its Consolidated Subsidiaries, and (ii) consolidating financial
statements (including the balance sheet and statements of income,
shareholders' equity and cash flows) of the Borrower and all such
Subsidiaries, in each case as of the end of such Fiscal Year, setting
forth in each case in comparative form the figures for the previous
fiscal year, all certified by its Certified Public Accountants or other
independent public accountants of nationally recognized standing
acceptable to the Administrative Agent, with such certification to be
free of exceptions and qualifications not acceptable to the Required
Lenders;
(b) as soon as available and in any event within twenty
(20) days after the end of each Fiscal Month and within forty-five (45)
days after the end of each Fiscal Quarter, (i) consolidated financial
statements (including the balance sheet and statements of income,
shareholders' equity and cash flows) of the Borrower and its
Consolidated Subsidiaries, and (ii) consolidating financial statements
(including the balance sheet and statements of income, shareholders'
equity and cash flows) of the Borrower and all such Subsidiaries,
segregated on a division-by-division basis additionally, as
appropriate, in each case as of the end of such Fiscal Month or Fiscal
Quarter, as the case may be, and for the portion of the Fiscal Year
ending on such date, setting forth in each case in comparative form the
figures for the corresponding Fiscal Month or Fiscal Quarter and the
corresponding portion of the previous Fiscal Year, all certified
(subject to normal year-end adjustments) as to fairness of
presentation, GAAP and consistency by a Senior Officer of the Borrower;
(c) simultaneously with the delivery of each set of
annual and quarterly financial statements referred to in paragraphs (a)
and (b) above, a certificate, substantially in the form of EXHIBIT G (a
"Compliance Certificate"), of a Senior Officer of the Borrower (i)
setting forth in reasonable detail the calculations required to
establish whether the Borrower was in compliance with the requirements
of SECTIONS 5.16 through 5.18, inclusive, 5.20 through 5.25, inclusive,
and SECTION 5.40 on the date of such financial statements and (ii)
stating whether any Default exists on the date of such certificate and,
if any Default then exists, setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect
thereto;
(d) simultaneously with the delivery of each set of
annual financial statements referred to in paragraph (a) above, (i) a
statement of the Certified Public Accountants which reported on such
statements to the effect that (A) such accountants acknowledge and
agree that the Issuers, Agents and the Lenders may rely upon such
financial statement in the administration of this Agreement, and (B)
nothing has come to their attention to cause them to believe that any
Default existed on the date of such financial statements, and (ii) a
copy of any management letter furnished to the Borrower by such
Certified Public Accountants;
(e) as soon as available and in no event later than
forty-five (45) days after the end of each Fiscal Quarter of the
Borrower, projections of the Borrower and the Subsidiaries for the
forthcoming four (4) Fiscal Quarters, set forth Fiscal Quarter by
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Fiscal Quarter, together with all material assumptions made in
connection therewith and a comparison to any prior projections for
comparable periods;
(f) promptly, but in any event within two (2) Domestic
Business Days, after the Borrower becomes aware of the occurrence of
any Default, a certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth the details thereof
and the action which the Borrower are taking or propose to take with
respect thereto;
(g) promptly upon the mailing thereof to the shareholders
of the Borrower generally, copies of all financial statements, reports
and proxy statements so mailed;
(h) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual,
quarterly or monthly reports which the Borrower shall have filed with
the Securities and Exchange Commission;
(i) if and when any member of the Controlled Group (i)
gives or is required to give notice to the PBGC of any "reportable
event" (as defined in SECTION 4043 of ERISA) with respect to any Plan
which might constitute grounds for a termination of such Plan under
Title IV of ERISA, or knows that the plan administrator of any Plan has
given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be
given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a copy of such notice; or
(iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate or appoint a trustee to administer any Plan, a copy
of such notice;
(j) as soon as practicable, but in any event on or before
twenty (20) days after the end of each Fiscal Month, or such more
frequent intervals as required by the Collateral Agent from time to
time, a duly executed Borrowing Base Certificate (and to the Collateral
Agent any accompanying documentation required by the Collateral Agent),
with respect to satisfaction of the requirement that the Working
Capital Obligations shall not exceed the Borrowing Base, as of the last
day of the reporting period, in the form of EXHIBIT F or such other
form as the Collateral Agent may deliver for such purpose to the
Borrower from time to time hereafter, the statements in which, in each
instance, shall be certified as to truth and accuracy by a Senior
Officer of the Borrower;
(k) written notice of the following: (i) promptly after
the Borrower's learning thereof, of (A) the commencement of any
litigation affecting the Borrower or any of the Subsidiaries or any of
its respective assets, whether or not the claim is considered by the
Borrower to be covered by insurance, and (B) the institution of any
administrative proceeding which in either case of clause (A) or (B), if
decided adversely, would have a Material Adverse Effect; (ii) at least
thirty (30) days prior thereto, of the opening of any new office or
place of business of the Borrower or any of its Subsidiaries or the
closing of any existing office or place of business of the
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Borrower or any of the Subsidiaries; (iii) promptly after the
Borrower's learning thereof, of any labor dispute to which the Borrower
or any of the Subsidiaries may become a party, or any strikes or
walkouts relating to any of its plants or other facilities, which in
either case will have a Material Adverse Effect, and the expiration of
any labor contract to which it is a party or by which it is bound; (iv)
promptly after the occurrence thereof, of any default by any obligor
under any note or other evidence of indebtedness payable to the
Borrower or any of the Subsidiaries exceeding Two Hundred Fifty
Thousand Dollars ($250,000); (v) promptly after the rendition thereof,
of any judgment in an amount exceeding Two Hundred Fifty Thousand
Dollars ($250,000) rendered against the Borrower or any of the
Subsidiaries; and (vi) knowledge of any and all Environmental
Liabilities, pending, threatened or anticipated Environmental
Proceedings, Environmental Notices, Environmental Judgments and Orders,
and Environmental Releases at, on, in, under or in any way affecting
the Aggregate Real Properties or any adjacent property, and all facts,
events, or conditions that could lead to any of the foregoing;
(l) simultaneously with the delivery of each set of
annual and quarterly financial statements referred to in paragraphs (a)
and (b) in this SECTION 5.01 above, a statement of the Borrower's
Senior Officer to the effect that nothing has come to the Borrower's
attention to cause it to believe that the Y2K Plan milestones have not
been met in a manner such that the Borrower's and the Subsidiaries'
hardware and software systems will not be Year 2000 Compliant and Ready
in accordance with the Y2K Plan;
(m) within five (5) Domestic Business Days after the
Borrower becomes aware of any deviations from the Y2K Plan which would
cause compliance with the Y2K Plan to be delayed or not achieved, a
statement of the Borrower's Senior Officer setting forth the details
thereof and the action which the Borrower is taking or proposes to take
with respect thereto;
(n) promptly upon the receipt thereof, a copy of any
third party assessments of the Borrower's Y2K Plan together with any
recommendations made by such third party with respect to Year 2000
compliance;
(o) from time to time such additional information
regarding the financial position or business (including, without
limitation, tax returns and bank statements) of the Borrower and the
Subsidiaries as the Administrative Agent, at the request of any Lender,
may reasonably request.
SECTION 5.02. Inspection of Property, Books and Records.
(a) The Borrower will (i) keep, and cause each Subsidiary to keep, proper books
of record and account in which full, true and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and activities; and (ii) permit, and cause each Subsidiary to permit, any
Issuer, any Agent and any Lender (at the Borrower's expense, if a Default or
Event of Default then exists), to visit and inspect any of their respective
properties, verify information with any Person, to examine and make abstracts
from any of the Borrower's or such Subsidiaries' respective books and records
and to discuss their respective affairs, finances and accounts with
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their respective officers, employees and independent public accountants, the
Borrower agreeing to cooperate and assist in such visits and inspections, in
each case prior to the occurrence of a Default, at such reasonable times and as
often as may reasonably be requested, and after the occurrence of a Default, at
any time and without prior notice.
(b) In addition to the rights granted the Issuers, the
Agents and the Lenders pursuant to SECTION 5.02(a), each Agent (or any Person or
Persons designated by it) shall, in its sole discretion, have the right to call
at any place of business of the Borrower at any time and without prior notice,
and, without hindrance or delay, examine, inspect, and audit all or any portion
of the Collateral and to examine, inspect, audit and check and make copies of
and extracts from the Borrower's books, records, journals, orders, receipts and
any correspondence and other data relating to the Collateral, to the Borrower's
business or to any other transactions between the parties hereto.
SECTION 5.03. Maintenance of Existence and Management. The
Borrower shall, and shall cause each Subsidiary to maintain, (i) their
respective corporate existences and carry on their respective businesses in
substantially the same manner and in substantially the same fields as such
business is now carried on and maintained, except as permitted by SECTIONS 5.04
and 5.05, (ii) their respective corporate charters, by-laws, partnership
agreements, operating agreements and other similar documents and agreements
relating to their legal existence and organization, and not permit any amendment
or other modification thereto except for any amendment or modification that
would not affect the Obligations or result in a Material Adverse Effect, and
(iii) maintain executive management having sufficient skill and experience in
the Borrower's and the Subsidiaries' industry to manage the Borrower and the
Subsidiaries competently and efficiently.
SECTION 5.04. Dissolution. The Borrower shall not suffer
or permit dissolution or liquidation either in whole or in part or redeem or
retire any shares of its own stock or that of the Borrower or any Subsidiary,
except through corporate reorganization to the extent permitted by SECTION 5.05.
SECTION 5.05. Consolidations, Mergers and Sales of Assets.
(a) The Borrower will not, nor will it permit any Subsidiary to, merge or
consolidate, or permit any of its Subsidiaries to merge or consolidate, with any
Person, except for a merger or consolidation between Subsidiaries of the
Borrower or involving only the Borrower and one or more of its Subsidiaries in
which the Borrower is the surviving entity.
(b) The Borrower will not, nor will it permit any
Subsidiary to sell, lease or otherwise transfer all or any part of their assets
(including, without limitation, any sale and leaseback arrangement, but
excluding sales of inventory in the ordinary course of business) to, any other
Person, or discontinue or eliminate any business line or segment, provided that
the foregoing limitation on the sale, lease or other transfer of assets and on
the discontinuation or elimination of a business line or segment shall not
prohibit: (i) subject to the provisions of SECTION 2.10(c), the dispositions of
assets described in the proviso contained in clause (i) of the definition of
"Net Cash Proceeds"; and (ii) dispositions of Equipment Collateral subject to
the provisions of SECTION 5.36.
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SECTION 5.06. Use of Proceeds. No portion of the proceeds
of the Loans will be used by the Borrower or any Subsidiary (i) in connection
with, whether directly or indirectly, any tender offer for, or other acquisition
of, stock of any corporation with a view towards obtaining control of such other
corporation, unless such tender offer or other acquisition is to be made on a
negotiated basis with the approval of the Board of Directors of the Person to be
acquired, and the provisions of SECTION 5.17 would not be violated, (ii)
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose
in violation of any applicable law or regulation or in contravention of any
terms or conditions of this Agreement or any Credit Document.
SECTION 5.07. Compliance with Laws; Payment of Taxes. The
Borrower will, and will cause each of the Subsidiaries and each member of the
Controlled Group to, comply with applicable laws (including but not limited to
ERISA and the Fair Labor Standards Act of 1938, as amended), regulations and
similar requirements of governmental authorities (including but not limited to
PBGC), except where the necessity of such compliance is being contested in good
faith through appropriate proceedings diligently pursued and except where
failure to comply would not have and would not reasonably be expected to cause a
Material Adverse Effect. The Borrower will, and will cause each of the
Subsidiaries to, pay promptly when due all taxes, assessments, governmental
charges, claims for labor, supplies, rent and other obligations which, if
unpaid, might become a lien against the property of the Borrower or any
Subsidiary, except liabilities being contested in good faith and against which,
if requested by the Agent, the Borrower or such Subsidiary will set up reserves
in accordance with GAAP.
SECTION 5.08. Insurance; Net Casualty/Insurance Proceeds.
(a) The Borrower will maintain, and will cause each of the Subsidiaries to
maintain (either in the name of the Borrower or in such Subsidiary's own name),
with financially sound and reputable insurance companies acceptable to the
Collateral Agent and with a Best's Rating of at least "A", insurance on all of
their property in at least such amounts and against at least such risks
(including on all its property, public liability and worker's compensation (but
solely with respect to worker's compensation, only to the extent not
self-insured), and business interruption insurance) as are usually insured
against in the same general area by companies of established repute engaged in
the same or similar business. The Borrower shall deliver the originals or copies
(which copies shall be certified if requested by the Collateral Agent) of such
policies to the Collateral Agent with satisfactory lender's loss payable
endorsements naming the Collateral Agent, as agent for the other Agents, the
Issuers and the Lenders, as sole loss payee, assignee and additional insured, as
its interests may appear. Each policy of insurance or endorsement shall contain
a clause (i) not permitting cancellation by a Borrower without the prior written
consent of the Collateral Agent, (ii) requiring the insurer to give not less
than thirty (30) days prior written notice to the Collateral Agent in the event
of cancellation or non-renewal by the insurance company of the policy for any
reason whatsoever, and (iii) specifying that the interest of the Collateral
Agent shall not be impaired or invalidated by any act or neglect of the Borrower
or the owner of the property or by the occupation of the premises for purposes
more hazardous than are permitted by said policy. On the Closing Date, and from
time to time thereafter upon the Collateral Agent's request, the Borrower shall
provide the Collateral Agent with a statement from each insurance company
providing the foregoing coverage, acknowledging in favor of the Collateral Agent
the continued effectiveness of the foregoing insurance clauses. If the Borrower
fails to provide and
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pay for such insurance, the Collateral Agent may, at its option, but shall not
be required to, procure the same and charge the Borrower therefor as a part of
the Obligations.
(b) Net Casualty/Insurance Proceeds must be applied to
either (i) the payment of the Obligations, or (ii) the repair and/or restoration
of the Collateral. If either an Event of Default has occurred, or the cost to
repair or restore the Collateral exceeds Three Hundred Thousand Dollars
($300,000), then, in such event, the Collateral Agent, at the direction of the
Required Lenders, shall determine, the manner in which Net Casualty/Insurance
Proceeds are to be applied. If no Event of Default has occurred and the cost to
repair or restore the Collateral is Three Hundred Thousand Dollars ($300,000) or
less, the Borrower shall determine the manner in which Net Casualty/Insurance
Proceeds are to be applied.
SECTION 5.09. Change in Fiscal Year. The Borrower will not
change its Fiscal Year, or the Fiscal Year of any Subsidiary, without the
consent of the Required Lenders.
SECTION 5.10. Maintenance of Property. The Borrower shall,
and shall cause each Subsidiary to, maintain all of its properties and assets in
reasonably good condition, repair and working order, ordinary wear and tear
excepted. The Borrower and Subsidiaries shall maintain all Equipment Collateral
in good operating condition and repair, reasonable wear and tear excepted and
all necessary replacements of and repairs thereto shall be made so that the
value and operating efficiency of the Equipment Collateral shall be maintained
and preserved, reasonable wear and tear excepted. Without the prior written
consent of the Collateral Agent, none of the Equipment Collateral may be affixed
to any real property such that it is characterized as a fixture under applicable
law.
SECTION 5.11. Material Contracts. The Borrower shall
comply, and cause each Subsidiary to comply, with all material terms and
conditions of any Material Contract to which it is a party. The Borrower will
not, without the Administrative Agent's and the Required Lenders' prior written
consent, (i) enter into, or permit any Subsidiary to enter into, any amendment
or modification to any Material Contract of a material nature, or (ii) permit
any Material Contract to be cancelled or terminated prior to its stated
maturity. The Borrower shall promptly notify the Administrative Agent and
deliver to the Administrative Agent any notice received by the Borrower with
respect to any event which constitutes a default by the Borrower or Subsidiary
under any Material Contract to which the Borrower or such Subsidiary is a party
or by which any of the assets of the Borrower or Subsidiary may be bound.
SECTION 5.12. Environmental Matters. The Borrower and the
Subsidiaries will not, and will not permit any Third Party to, use, produce,
manufacture, process, treat, recycle, generate, store, dispose of, manage at, or
otherwise handle, or ship or transport to or from the Aggregate Real Properties
any Hazardous Materials except for Hazardous Materials such as cleaning
solvents, pesticides and other similar materials used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed, managed, or otherwise
handled in minimal amounts in the ordinary course of business in compliance with
all applicable Environmental Requirements.
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SECTION 5.13. Environmental Release. The Borrower agrees
that upon the occurrence of an Environmental Release at or on any of the
Aggregate Real Properties it will act immediately to investigate the extent of,
and to take appropriate remedial action to eliminate, such Environmental
Release, whether or not ordered or otherwise directed to do so by any
Environmental Authority.
SECTION 5.14. Transactions with Affiliates. Other than
transactions or arrangements existing on the Closing Date and described on
SCHEDULE 5.14, neither the Borrower nor any of the Subsidiaries shall enter
into, or be a party to, any transaction involving Two Hundred Fifty Thousand
Dollars ($250,000) or more with any Affiliate of the Borrower or such
Subsidiaries (which Affiliate is not one of the Borrower or a Wholly Owned
Subsidiary), except as permitted by law and in the ordinary course of business
and pursuant to reasonable terms which are fully disclosed to the Agents and the
Lenders and are no less favorable to such Borrower or such Subsidiary than would
be obtained in a comparable arm's length transaction with a Person which is not
an Affiliate.
SECTION 5.15. No Other Subsidiaries. Neither the Borrower
nor any of the Subsidiaries shall hereafter create or acquire any Subsidiary;
and the Borrower shall not transfer any material assets to FSC.
SECTION 5.16. Restricted Payments. The Borrower will not
declare or make any Restricted Payment during any Fiscal Year, except as
follows: (i) during the period from the Closing Date through December 31, 1998,
Restricted Payments consisting of cash dividends may be made (A) if no Default
or Event of Default then exists or would result therefrom, and (B) the aggregate
amount of all such Restricted Payments (without carryover) does not exceed Two
Hundred Fifty Thousand Dollars ($250,000) per Fiscal Quarter; and (ii)
subsequent to December 31, 1998, Restricted Payments consisting of cash
dividends may be made, without limitation as to Dollar amount, if no Default or
Event of Default then exists or would result therefrom.
SECTION 5.17. Investments. The Borrower will not, and will
not permit any of the Subsidiaries to, make Investments in any Person, except:
(i) loans or advances to employees not exceeding One
Hundred Thousand Dollars ($100,000) in the aggregate principal amount
outstanding at any time, in each case made in the ordinary course of
business and consistent with practices existing on the Closing Date;
(ii) deposits required by government agencies, public
utilities or insurance companies;
(iii) Investments by any Borrower to or in any
Subsidiaries, either (1) existing on the Closing Date, or (2) not
existing on the Closing Date, but not exceeding Two Hundred Thousand
Dollars ($200,000) in the aggregate outstanding;
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(iv) Investments in (1) direct obligations of the United
States Government maturing within one year, (2) certificates of deposit
issued by a commercial bank whose credit is satisfactory to the
Collateral Agent, (3) commercial paper rated "A1" or the equivalent
thereof by S&P or P1 or the equivalent thereof by Moody's and in either
case maturing within 6 months after the date of acquisition, and/or (4)
tender bonds the payment of the principal of and interest on which is
fully supported by a letter of credit issued by a United States bank
whose long-term certificates of deposit are rated at least "AA" or the
equivalent thereof by S&P and "Aa" or the equivalent thereof by
Moody's;
(v) Investments as a result of Interest Rate Protection
Agreements, not entered into for speculative purposes;
(vi) Investments as a result of ForEx Contracts, not
entered into for speculative purposes;
(vii) Investments arising from contracts for the future or
forward sale of raw cotton made in the ordinary course of Borrower's
business for hedging purposes (but not for speculation) which contracts
do not exceed, in the aggregate, sales of raw cotton (in units) in
excess of the amount (in units) of the Borrower's present purchases (or
commitments to purchase) such raw cotton;
(viii) other Investments: (x) existing on the Closing Date,
and (y) made after the Closing Date in an aggregate amount at any time
not exceeding Two Hundred Thousand Dollars ($200,000);
provided, however, that immediately after giving effect to the making of any
Investment permitted by this SECTION 5.17, no Default or Event of Default shall
have occurred and be continuing;
SECTION 5.18. Permitted Liens. The Borrower will not, and
will not permit any Subsidiary to, create, assume or suffer to exist any Lien,
directly or indirectly, on any asset now owned or hereafter acquired by it,
except as set forth below (the following herein called, collectively, the
"Permitted Encumbrances"):
(a) Liens existing on the date of this Agreement securing
Debt outstanding on the date of this Agreement and disclosed in the
Collateral Disclosure Certificate;
(b) any Lien existing on any specific fixed asset of any
corporation at the time such corporation becomes a Subsidiary (if then
permitted to exist hereunder) and not created in contemplation of such
event;
(c) any Lien on any specific fixed asset securing Debt
incurred or assumed for the purpose of financing all or any part of the
cost of acquiring or constructing such asset, provided that such Lien
attaches to such asset concurrently with or within 18 months after the
acquisition or completion of construction thereof;
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(d) any Lien on any specific fixed asset of any
corporation existing at the time such corporation is merged or
consolidated with or into the Borrower or a Subsidiary and not created
in contemplation of such event;
(e) any Lien existing on any specific fixed asset prior
to the acquisition thereof by the Borrower or a Subsidiary and not
created in contemplation of such acquisition;
(f) Purchase Money Liens, securing Debt, not to exceed
Two Million Five Hundred Thousand Dollars ($2,500,000), in the
aggregate, at any time outstanding; provided, however, that in granting
such Purchase Money Liens, Borrower shall use its best efforts to
obtain from the holder of such Lien a consent (if such a consent is, in
fact, necessary) to the grant of a Lien on the equipment covered by
such Purchase Money Lien in favor of the Collateral Agent;
(g) Liens incidental to the conduct of its business or
the ownership of its assets which (i) do not secure Debt and (ii) do
not in the aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of its business;
provided, however, that immediately after giving effect to the creation,
assumption, existence or incurrence of any Liens permitted by this SECTION 5.18,
no Default or Event of Default shall have occurred and be continuing; and
provided, further, that the Negative Pledge Agreement shall operate cumulatively
with, and not in derogation of the foregoing provisions, but if there is any
conflict between the terms of the Negative Pledge Agreement and the terms of
this SECTION 5.18, the terms of the Negative Pledge Agreement shall control.
SECTION 5.19. Restrictions on Ability of Borrower and
Subsidiaries to Pay Dividends. The Borrower will not, and will not permit any
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any contractual encumbrance or restriction on the
ability of any Subsidiary to (i) pay any dividends or make any other
distributions on its Capital Stock or any other interest or (ii) make or repay
any loans or advances to the Borrower.
SECTION 5.20. Fixed Charge Coverage. Beginning with the
Fiscal Quarter ending on or about September 30, 1999, the Fixed Charge Coverage
Ratio, determined quarterly, at the end of the Fiscal Quarter in question, for
such Fiscal Quarter and the three (3) preceding Fiscal Quarters, will be greater
than 1.00 to 1.00, calculated at the end of each such Fiscal Quarter.
SECTION 5.21. Minimum Consolidated EBITDA. Consolidated
EBITDA will be no less than: (i) $800,000, for the Fiscal Quarter ending closest
to September 30, 1998; (ii) $2,700,000, for the two (2) Fiscal Quarters,
determined cumulatively, ending closest to December 31, 1998; (iii) $6,000,000,
for the three (3) Fiscal Quarters, determined cumulatively, ending closest to
March 31, 1999; and (iv) $9,500,000, for the four (4) Fiscal Quarters,
determined cumulatively, ending closest to June 30, 1999.
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SECTION 5.22. Funded Debt/EBITDA Ratio. The Funded
Debt/EBITDA Ratio, determined quarterly, at the end of the Fiscal Quarter in
question, for such Fiscal Quarter and the three (3) preceding Fiscal Quarters,
will not exceed (i) beginning with the Fiscal Quarter ending on or about
September 30, 1999, 6.00 to 1.00, (ii) as of the Fiscal Quarter ending on or
about December 31, 1999, 5.00 to 1.00, (iii) as of the Fiscal Quarter ending on
or about March 31, 2000, 4:00 to 1.00; and (iv) as of the Fiscal Quarter ending
on or about June 30, 2000, and thereafter, 3.50 to 1.00; calculated at the end
of each such Fiscal Quarter.
SECTION 5.23. Leverage Ratio. The Leverage Ratio will not
at any time exceed 1.50 to 1.00.
SECTION 5.24. Minimum Consolidated Tangible Net Worth.
Consolidated Tangible Net Worth will at no time be less than the sum of (i)
$77,500,000; plus (ii) the sum of seventy-five percent (75%) of cumulative
(since the Fiscal Year ending closest to June 30, 1998) Reported Net Income
(excluding any Fiscal Quarter during which Reported Net Income is less than
$0.00) of the Borrower and the Subsidiaries in the immediately preceding Fiscal
Quarter; plus (iii) the sum of one hundred percent (100%) of the cumulative
(since the Fiscal Year ending closest to June 30, 1998) cash proceeds derived by
the Borrower from the issuance of any Capital Stock.
SECTION 5.25. Permitted Debt. The Borrower will not, and
will not permit any Subsidiary to, create, assume or incur any Debt, except as
follows (the amounts set forth below are in the aggregate for the Borrower and
all Subsidiaries).
(a) Debt owing by any Subsidiary to the Borrower;
(b) Debt to the Agents, the Issuers and the Lenders under
this Agreement or any Credit Document;
(c) Debt to Persons other than that described in the
foregoing clause (b) existing on the date of this Agreement, including
the Prudential Notes and in respect of the Pike Facility Bonds, and
described more particularly in SCHEDULE 5.25;
(d) Subordinated Debt (including any refinanced
Subordinated Debt so long as (i) the maturity of such refinanced
Subordinated Debt is not earlier than the maturity of the original
Subordinated Debt, and (ii) the interest, fees and other amounts
payable with respect to such refinanced Subordinated Debt are no
greater than any interest, fees or other amounts payable with respect
to the original Subordinated Debt);
(e) Debt consisting of accrued pension fund and other
employee benefit plan obligations and liabilities;
(f) Debt consisting of deferred taxes;
(g) Debt resulting from endorsements of negotiable
instruments received in the ordinary course of business;
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(h) Debt secured by Purchase Money Liens permitted
hereby, not to exceed Two Million Five Hundred Thousand Dollars
($2,500,000), in the aggregate, at any time outstanding;
(i) contingent obligations with respect to letters of
credit which have been issued but not drawn upon;
(j) other Debt for any Fiscal Year of the Borrower in an
aggregate amount not to exceed Two Hundred Thousand Dollars ($200,000);
(k) Debt as a result of Interest Rate Protection
Agreements and ForEx Contracts, as and to the extent that the same are
permitted under SECTION 5.17;
(l) Debt arising out of the refinancing, extension,
renewal or refunding of any Debt permitted by any of the foregoing
paragraphs of this SECTION so long as (i) the maturity of such
refinanced Debt is not earlier than the maturity of such original Debt,
and (ii) the interest, fees and other amounts payable with respect to
such refinanced Debt are no greater than any interest, fees or other
amounts payable with respect to the original Debt; and
(m) Debt under the Prior Loan Agreement and any other
Debt being refinanced pursuant hereto;
provided, however, that immediately after giving effect to the creation,
assumption, existence or incurrence of any Debt permitted by this SECTION 5.25,
no Default or Event of Default shall have occurred and be continuing.
SECTION 5.26. Limitation on Issuance and Sale of Capital
Stock of Subsidiaries. The Borrower will not, nor permit any Subsidiary to,
permit any Wholly Owned Subsidiary to issue any Capital Stock other than to a
Borrower or one of its Wholly Owned Subsidiaries or permit any Person other than
a Borrower or one of its Wholly Owned Subsidiaries to own any Capital Stock of a
Wholly Owned Subsidiary (other than directors' qualifying shares); or sell any
of the Capital Stock of a Subsidiary of a Borrower, or permit any Subsidiary of
a Borrower to sell any of the Capital Stock of any other Subsidiary.
SECTION 5.27. Change of Principal Place of Business or
Location of Collateral. Neither Borrower nor any Subsidiary shall transfer its
principal place of business or Executive Office, or open new Collateral
Locations or warehouses, or transfer existing Collateral Locations or
warehouses, or locate the Collateral at any location other than a Collateral
Location, or maintain records with respect to Collateral, to or at any locations
other than those at which the same are presently kept or maintained as set forth
on the Collateral Disclosure Certificates without the Agents' prior written
consent after at least thirty (30) days prior written notice to the Agents.
SECTION 5.28. Physical Inventories. The Borrower shall
conduct a physical inventory no less frequently than annually and shall provide
to the Collateral Agent a
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report of such physical inventory promptly thereafter, together with such
supporting information as the Collateral Agent shall reasonably request.
SECTION 5.29. Inventory Returns. If at any time or times
hereafter any Account Debtor returns any Inventory Collateral the shipment of
which generated an account on which such Account Debtor is obligated in excess
of Three Hundred Thousand Dollars ($300,000), the Borrower shall notify the
Collateral Agent of the same immediately, specifying the reason for such return
and the location and condition of the returned Inventory.
SECTION 5.30. Preservation of Intangibles Collateral. The
Borrower shall take all reasonably necessary and appropriate measures, taking
into account the value and usefulness of the relevant Intangibles Collateral and
the cost of such measures, to (and to cause such Subsidiary to) obtain,
maintain, protect and preserve the Intangibles Collateral including, without
limitation, registration thereof with the appropriate state or federal
governmental agency or department.
SECTION 5.31. Records Respecting Collateral. All records
of each Obligor with respect to the Collateral will be kept at their respective
Executive Offices and will not be removed from such addresses without the prior
written consent of the Collateral Agent.
SECTION 5.32. Reports Respecting Collateral. The Borrower
shall, as soon as practicable, but in any event on or before twenty (20) days
after the end of each Fiscal Month, furnish or cause to be furnished to the
Collateral Agent a status report, certified by a Senior Officer of Borrower,
showing: (i) the aggregate dollar value of the items comprising the Accounts
Receivable Collateral and the age of each individual item thereof as of the last
day of the preceding Fiscal Month (segregating such items in such manner and to
such degree as the Collateral Agent may request, including, without limitation,
by Account Debtor name, address, invoice number, invoice date and due date);
(ii) the aggregate dollar value of the items of Accounts Receivable Collateral
subject to "bill and hold" arrangements (segregating such items in such manner
and to such degree as the Collateral Agent may request); (iii) the aggregate
dollar value of the items comprising the accounts payable of the Borrower and
the Subsidiaries and the age of each individual item thereof as of the last day
of the preceding Fiscal Month (segregating such items in such manner and to such
degree as the Collateral Agent may request); (iv) the type, age, dollar value
and location of the Inventory Collateral as at the end of the preceding Fiscal
Month, valued at the lower of its FIFO cost or market value; and (v) the
aggregate dollar value of all returns, repossessions or discounts with respect
to Inventory Collateral in excess of Three Hundred Thousand Dollars ($300,000).
Additionally, the Collateral Agent may, at any time in its sole discretion,
require the Borrower and each Subsidiary Guarantor to permit the Collateral
Agent in its own name or any designee of the Collateral Agent in its own name to
verify the individual account balances of or any other matter relating to the
individual Account Debtors immediately upon its request therefor by mail,
telephone, telegraph or otherwise. The Borrower shall cooperate fully with the
Collateral Agent in an effort to facilitate and promptly conclude any such
verification process. In any event, with the above described status report for
the month of June of each year and upon request from the Collateral Agent, made
at any time hereafter, the Borrower shall furnish the Collateral Agent with a
then current customer and Account Debtor name and address list, together with
(if requested by the Collateral Agent) updates of Equipment
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Collateral lists and updates of the appraisal of the Equipment Collateral.
During any period during which the Borrower may not borrow Revolving Loans under
SECTION 2.01(a) or a Default or Event of Default exists, then, upon the
Collateral Agent's reasonable request therefor, the Borrower shall deliver, and
cause each Subsidiary Guarantor to deliver, to the Collateral Agent copies of
proof of delivery and the original copy of all documents, including, without
limitation, repayment histories and present status reports relating to all
accounts listed on any Borrowing Base Certificate and such other matters and
information relating to the status of the Accounts of the Borrower as the
Collateral Agent shall reasonably request.
SECTION 5.33. Collateral Location Waivers. With respect to
each of the Collateral Locations, the Borrower will obtain, or cause each
Subsidiary Guarantor to obtain, such Waiver Agreements from Third Parties as the
Collateral Agent may reasonably require to insure the priority of its security
interest in that portion of the Collateral situated at such locations.
SECTION 5.34. Updates to Appraisals. The Collateral Agent
reserves the right, exercisable from time to time hereafter, but no more
frequently than annually, to require that the Borrower obtain, and the Borrower
shall so obtain, at the Borrower's expense, updates to then existing appraisals
being obtained in connection with the execution and delivery of this Agreement
reflecting then current values of the Equipment Collateral.
SECTION 5.35. Payment of Taxes On and Use of Collateral.
The Borrower shall timely pay, or cause each Subsidiary Guarantor to pay, all
taxes and other charges against the Collateral, and the Borrower will not use
the Collateral illegally.
SECTION 5.36. Dispositions of Equipment Collateral. The
Borrower will not (and will not permit any Subsidiary to) sell, lease, exchange,
arrange for a sale and leaseback, or otherwise dispose of any of the Equipment
Collateral without the prior written consent of the Collateral Agent; provided,
however, that, with notice to, but without the necessity of consent of, the
Collateral Agent, from time to time hereafter, in the ordinary course of the
Borrower's or a Subsidiary's business for so long as no Default or Event of
Default exists, the Borrower may (i) sell such portions of its Equipment
Collateral which in the aggregate during any twelve (12) month period, has a
market value or a book value, whichever is more, of Three Hundred Thousand
Dollars ($300,000) or less, provided that the Net Cash Proceeds thereof are used
to purchase replacement Equipment Collateral of equivalent value (as determined
by the Collateral Agent) on the date of such disposition or, if such purchase
does not occur on such disposition date, then, (A) an amount equal to such
entire Net Cash Proceeds are used by the Borrower to prepay the Revolving Loans
pending such purchase and (B) if no such purchase occurs within ninety (90) days
after such disposition, an amount equal to such entire Net Cash Proceeds are
withdrawn from the Special Reserves corresponding thereto and remitted to the
Administrative Agent for application as mandatory prepayments of the Term Loans
under SECTION 2.10(c), and (ii), sell, exchange or otherwise dispose of portions
of its Equipment Collateral which are obsolete, worn-out or unsuitable for
continued use by the Borrower or any Subsidiary if such Equipment Collateral is
replaced promptly upon its disposition with equipment constituting Equipment
Collateral having a market value equal to or greater than the Equipment
Collateral so
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disposed of and in which the Collateral Agent shall obtain and have a first
priority security interest pursuant hereto subject only to Permitted
Encumbrances.
SECTION 5.37. Changes to Taxpayer Identification Number.
Borrower will not, and will not permit any Subsidiary to, change its federal
taxpayer identification number without thirty (30) days' prior written notice to
the Collateral Agent.
SECTION 5.38. Discounts and Allowances. Upon the granting
of any discounts, allowances or credits by a Borrower or any Subsidiary in
excess of Three Hundred Thousand Dollars ($300,000) or not in the ordinary
course of business and which in either case are not shown on the face of the
invoice for the account involved, the Borrower shall promptly report such
discounts, allowances or credits, as the case may be, to the Collateral Agent
and in no event later than the time of its submission to the Collateral Agent of
the next status report as required by SECTION 5.32. In the event any amounts due
and owing in excess of Three Hundred Thousand Dollars ($300,000) are in dispute
between the Borrower or any Subsidiary and any Account Debtor, the Borrower
shall provide the Collateral Agent with a report thereon, explaining in detail
the reason for the dispute, all claims related thereto and the amount in
controversy. During the existence of an Event of Default, and without affecting
the Borrower's liability with respect to the Obligations, the Collateral Agent,
in the exercise of its sole discretion, may settle disputes and otherwise deal
with the Account Debtors and the Borrower shall reimburse the Collateral Agent
as a part of the Obligations any out-of-pocket expenses incurred by the
Collateral Agent in connection therewith.
SECTION 5.39. Taxes Owing with Respect to Accounts. The
Borrower shall notify the Collateral Agent if any Account of the Borrower or any
Subsidiary includes any such tax due to any governmental taxing authority. If an
account of the Borrower or any Subsidiary includes a charge for any tax payable
to any governmental taxing authority, the Collateral Agent is authorized, in its
sole discretion, to pay the amount thereof to the proper taxing authority for
the account of the Borrower or such Subsidiary.
SECTION 5.40. Capital Expenditures and Operating Leases.
Borrower will not, nor shall it permit any Subsidiary to either (i) make any
expenditures (including obligations incurred under any lease) that are required
to be capitalized in accordance with GAAP, or (ii) enter into or remain or
become liable upon any lease (other than intercompany leases between the
Borrower and its Subsidiaries) which would be characterized as an operating
lease in accordance GAAP if the aggregate amount of all such capital
expenditures and the underlying dollar value of the property leased under all
such leases would exceed Eight Million Dollars ($8,000,000) in any consecutive
period of twelve (12) months.
SECTION 5.41. Consultants. On or prior to the Closing
Date, the Borrower shall have retained the services of an independent consulting
firm, selected by the Borrower, but reasonably acceptable to the Administrative
Agent, for the purpose of reviewing with the Borrower its current business
operations and financial condition, and developing therefrom a strategic
business plan addressing action steps to be taken by the Borrower to improve its
business operations and cash flow, taking into consideration the anticipated
costs of meeting all Environmental Requirements, with such plan (including
financial projections reflecting
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anticipated benefits) to be delivered to the Borrower, with a copy to the
Administrative Agent, by not later than: (i) September 30, 1998, in preliminary
form, and (ii) October 30, 1998, in final form. Thereafter, Borrower shall
apprise the Administrative Agent from time to time at its request, but at least
quarterly, of the status of its progress of such plan and the benefits being
realized therefrom.
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default. If any one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal
of any Loan or any Reimbursement Obligations with respect to any Letter
of Credit, or shall fail to pay any interest on any Loan within five
(5) Domestic Business Days after such interest shall become due, or
shall fail to pay any fee or other Obligations within five (5) Domestic
Business Days after such fee or other Obligation becomes due; or
(b) the Borrower shall fail to observe or perform any
covenant contained in SECTIONS 5.01, 5.02(a)(ii), 5.02(b), 5.03 through
5.06, inclusive, 5.08, 5.15 through 5.26, inclusive and 5.32, 5.36 and
5.40; or
(c) the Borrower or any subsidiary party thereto shall
fail to observe or perform any covenant or agreement contained or
incorporated by reference in this Agreement (other than those covered
by paragraph (a) or (b) above) or any Credit Document and such failure
shall not have been cured within thirty (30) days after the earlier to
occur of (i) written notice thereof has been given to the Borrower by
the Administrative Agent or (ii) the Borrower otherwise becomes aware
of any such failure; or
(d) any representation, warranty, certification or
statement made by the Borrower in ARTICLE 4 of this Agreement or made
by any Person in any certificate, financial statement or other document
delivered pursuant to this Agreement or any other Credit Document shall
prove to have been incorrect or misleading in any material respect when
made (or deemed made); or
(e) the Borrower or any Subsidiary shall fail to make any
payment in respect of Debt outstanding (other than the Obligations) to
any Lender or under any document or agreement pertaining to such Debt
when due or within any applicable grace period; or
(f) any event or condition shall occur which results in
the acceleration of the maturity of Debt outstanding of the Borrower or
any Subsidiary in an aggregate principal amount of Two Hundred Fifty
Thousand Dollars ($250,000) or more
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(including, without limitation, any required mandatory prepayment or
"put" of such Debt to the Borrower or any Subsidiary) or enables (or,
with the giving of notice or lapse of time or both, would enable) the
holders of such Debt or commitment or any Person acting on such
holders' behalf to accelerate the maturity thereof or terminate any
such commitment prior to its normal expiration (including, without
limitation, any required mandatory prepayment or "put" of such Debt to
the Borrower or any Subsidiary); or
(g) the Borrower or any Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally, or
shall admit in writing its inability, to pay its debts as they become
due, or shall take any corporate action to authorize any of the
foregoing; or
(h) an involuntary case or other proceeding shall be
commenced against the Borrower or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of sixty (60) days; or an
order for relief shall be entered against the Borrower or any
Subsidiary under the federal bankruptcy laws as now or hereafter in
effect; or
(i) the Borrower, any Subsidiary or any member of the
Controlled Group shall fail to pay when due any material amount which
it shall have become liable to pay to the PBGC or to a Plan under Title
IV of ERISA; or notice of intent to terminate a Plan or Plans shall be
filed under Title IV of ERISA by the Borrower, any Borrower, any
Subsidiary, any member of the Controlled Group, any plan administrator
or any combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee
to be appointed to administer any such Plan or Plans or a proceeding
shall be instituted by a fiduciary of any such Plan or Plans to enforce
SECTION 515 or 4219(c)(5) of ERISA and such proceeding shall not have
been dismissed within thirty (30) days thereafter; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any such Plan or Plans must be terminated; or
(j) one or more judgments or orders of any court or other
judicial body for the payment of money in an aggregate amount in excess
of Two Hundred Fifty Thousand Dollars ($250,000) (in excess of amounts
covered by insurance) shall be rendered after the Closing Date against
the Borrower or any Subsidiary and such judgment or order
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shall either continue unsatisfied and unstayed for a period of thirty
(30) days or give rise to a Lien on any Collateral at any time; or
(k) (i) any Person or two or more Persons acting in
concert shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of forty percent (40%) or more of the
outstanding shares of the voting stock of the Borrower; or (ii) as of
any date a majority of the Board of Directors of the Borrower consists
of individuals who were not either (A) directors of the Borrower as of
the corresponding date of the previous year, (B) selected or nominated
to become directors by the Board of Directors of the Borrower of which
a majority consisted of individuals described in clause (A), or (C)
selected or nominated to become directors by the Board of Directors of
the Borrower of which a majority consisted of individuals described in
clause (A) and individuals described in clause (B); or
(l) the loss of a material part of the business from any
customer of the Borrower or any Subsidiary which, during the Fiscal
Year ended prior to such loss thereof, accounted for fifteen percent
(15%) or more of the aggregate sales of the Borrower; or
(m) if, on any day, the Borrower could not truthfully
make the representations and warranties contained in SECTION 4.17; or
(n) there shall have occurred material uninsured damage
to, or loss, theft or destruction of, any material part of the
Collateral; or
(o) the occurrence of any event, act, occurrence, or
condition which the Required Lenders determine either does or has a
reasonable probability of causing a Material Adverse Effect; or
(p) any strike, lockout, labor dispute, embargo,
condemnation, act of God or public enemy, or other casualty or
injunction, court order, or order or act of a governmental authority
which causes, for more than thirty (30) consecutive days beyond the
coverage period of any applicable business interruption insurance, the
cessation or substantial curtailment of revenue producing activities at
any facility of any Borrower or any Subsidiaries if any such event or
circumstance could reasonably be expected to have a Material Adverse
Effect; or
(q) if Neil H. Hightower, as President and CEO, shall
cease for any reason (including death or disability) to hold such
office, and a replacement of such individual in such office, which
replacement must be reasonably satisfactory to the Required Lenders, is
not made within thirty (30) days of the absence of such individual from
such office; or
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(r) if any guarantor under any Guaranty revokes or
attempts to revoke such Guaranty or claims that such Guaranty is
invalid or if any Guaranty is determined by a court to be invalid or
unenforceable;
then, and in every such event, the Administrative Agent will, if requested by
the Required Lenders: (i) by notice to the Borrower, terminate the Commitments
and they shall thereupon terminate and terminate each Issuer's obligations to
issue Letters of Credit hereunder; (ii) by notice to the Borrower declare the
Notes (together with accrued interest thereon), and all other Obligations to be,
and the same shall thereupon become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower, together with interest at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default and a surcharge on each Letter of Credit then outstanding equal in
amount to three percent (3%) of the respective face amount thereof; provided
that if any Event of Default specified in paragraph (g) or (h) above occurs with
respect to the Borrower, without any notice to the Borrower or any other act by
the Agents or the Lenders, the Commitments shall thereupon terminate and the
Notes (together with accrued interest thereon) and all other amounts payable
hereunder and under the other Credit Documents shall automatically and without
notice become immediately due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower
together with interest thereon at the Default Rate accruing on the principal
amount thereof from and after the date of such Event of Default; or (iii)
exercise any rights, powers or remedies under this Agreement and the other
Credit Documents. In addition, upon the occurrence of an Event of Default, to
the extent of any existing Letter of Credit Obligations, excluding, however, any
arising in respect of the Prudential Notes Standby Letter of Credit, the
Administrative Agent may immediately advance the amount thereof as a Revolving
Loan and set aside the amounts so advanced as a collateral reserve for payment
of all Reimbursement Obligations relating to such Letters of Credit which are
subsequently funded. After all Letters of Credit (excepting therefrom the
Prudential Notes Standby Letter of Credit) have been cancelled and all
Reimbursement Obligations in respect thereof have been satisfied, and each
Issuer has been reimbursed all amounts funded by it with respect thereto, any
balance remaining in said collateral reserve may be applied to all other
Obligations owed by the Borrower hereunder, in the manner prescribed in Section
2.11(d), and, if none, shall be remitted to the Borrower. Notwithstanding the
foregoing, each Agent shall have available to it all other remedies at law or
equity, and shall exercise any one or all of them at the request of the Required
Lenders. In no event may any Lender or Lenders exercise any rights, remedies or
powers with respect to the Obligations, this Credit Agreement and the other
Credit Documents without the consent of the Agents and the Required Lenders.
SECTION 6.02. Notice of Default. The Administrative Agent
shall give notice to the Borrower of any Default or Event of Default promptly
upon being requested to do so by any Lender, Issuer or other Agent, and shall
thereupon notify the Lenders, the Issuers and the Agents thereof.
SECTION 6.03. Remedies with Respect to Collateral. (a)
Upon the occurrence of an Event of Default, the Collateral Agent or any
representative of the Collateral Agent shall have the rights and remedies of a
secured party under the UCC in effect on the date
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thereof (regardless of whether the same has been enacted in the jurisdiction
where the rights or remedies are asserted), including, without limitation, the
right to require each Obligor to assemble the Collateral, at the Borrower's
expense, and make it available to the Collateral Agent at a place designated by
the Collateral Agent which is reasonably convenient to both parties, and enter
any premises where any of the Collateral shall be located and to keep and store
the Collateral on said premises until sold (and if said premises be the property
of the Borrower or any of the Subsidiaries, the Borrower agrees not to charge
the Collateral Agent for storage thereof), to take possession of any of the
Collateral or the proceeds thereof, to sell or otherwise dispose of the same,
and the Collateral Agent shall have the right to conduct such sales on the
premises of Obligors, without charge therefor, and such sales may be adjourned
from time to time in accordance with applicable law. The Collateral Agent may
sell, lease or dispose of Collateral for cash, credit, or any combination
thereof, and shall have the right to appoint a receiver of the Account's
Receivable Collateral and the Inventory Collateral or any part thereof, and the
right to apply the proceeds therefrom as set forth in SECTION 6.03(b) below. The
Collateral Agent shall give the Borrower on behalf of all Obligors written
notice of the time and place of any public sale of the Collateral or the time
after which any other intended disposition thereof is to be made. The
requirement of sending reasonable notice shall be met if such notice is given to
the Borrower at least ten (10) days before such disposition. Expenses of
retaking, verifying, restoring, holding, insuring, collecting, preserving,
liquidating, protecting, preparing for sale or selling, or otherwise disposing
of or the like with respect to the Collateral shall include, in any event,
reasonable attorneys' fees and other legally recoverable collection expenses,
all of which shall constitute a part of the Obligations.
(b) Proceeds of any of the Collateral and payments by the
Obligors during the existence of an Event of Default received by the Collateral
Agent or any Lender shall be applied in accordance with the provisions of
SECTION 2.11(d), and, after all of the Obligations have been paid in full and no
Letters of Credit, ForEx Obligations or Interest Rate Protection Agreement, or
any liability with respect thereto remains outstanding, then, such excess
proceeds shall be payable to the Borrower or any other Person as required by
applicable law. In the event that the proceeds of the Collateral are not
sufficient to pay the Obligations in full, the Borrower and such Subsidiary
Guarantor shall remain liable jointly and severally for any deficiency.
(c) Each Obligor hereby waives all rights which the
Obligor has or may have under and by virtue of O.C.G.A. CH. 44-14, including,
without limitation, the right to notice and to a judicial hearing prior to
seizure of any Collateral by the Collateral Agent.
(d) Unless and except to the extent expressly provided
for to the contrary herein, the rights of the Collateral Agent specified herein
shall be in addition to, and not in limitation of, the Collateral Agent's and
each Lender's rights under the UCC, or any other statute or rule of law or
equity, or under any other provision of any of the Credit Documents, or under
the provisions of any other document, instrument or other writing executed by
the Borrower, and other Obligor or any third party in favor of the Collateral
Agent, all of which may be exercised successively or concurrently.
(e) The Collateral Agent is hereby granted a license or
other right to use, without charge, each Obligor's labels, patents, copyrights,
rights of use of any name, trade
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secrets, trade names, trademarks and advertising matter, or any Property of a
similar nature, as it pertains to the Collateral, in advertising for sale and
selling any Collateral, and the Obligors' rights under all licenses and all
franchise agreements shall inure to the Collateral Agent's benefit.
(f) Neither the Collateral Agent nor any Lender shall be
liable or responsible in any way for the safekeeping of any of the Collateral or
for any loss or damage thereto or for any diminution in the value thereof, or
for any act or default of any warehouseman, carrier, forwarding agency, or other
person whomsoever, but the same shall be at the Borrower's sole risk.
(g) Neither the Collateral Agent nor any Lender shall be
under any obligation to marshal any assets in favor of the Borrower, any other
Obligor or any other Person or against or in payment of any or all of the
Obligations.
SECTION 6.04. Power of Attorney. Each Obligor irrevocably
designates and appoints the Collateral Agent its true and lawful attorney,
during the existence of an Event of Default, either in the name of the
Collateral Agent or in the name of such Obligor to ask for, demand, sue for,
collect, compromise, compound, receive, receipt for and give acquittances for
any and all sums owing or which may become due upon any items of the Collateral
and, in connection therewith, to take any and all actions as the Collateral
Agent may deem necessary or desirable in order to realize upon the Collateral,
including, without limitation, power to endorse in the name of such Obligor, any
checks, drafts, notes or other instruments received in payment of or on account
of the Inventory Collateral or the Accounts Receivable Collateral, but the
Collateral Agent shall not be under any duty to exercise any such authority or
power or in any way be responsible for the collection or other disposition of
any Collateral.
ARTICLE 7
THE AGENTS AND THE LENDERS
SECTION 7.01. Appointment; Powers and Immunities. (a) Each
Lender (and, with respect to the Letter of Credit Obligations, each Issuer)
hereby irrevocably appoints and authorizes each Agent (including its successors
by merger) to act as its agent hereunder and under the other Credit Documents
with such powers as are specifically delegated to such Agent by the terms hereof
and thereof, together with such other powers as are reasonably incidental
thereto. Each Agent: (i) shall have no duties or responsibilities except as
expressly set forth in this Agreement and the other Credit Documents, and shall
not by reason of this Agreement or any other Credit Document be a trustee for
any Lender; (ii) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or any
other Credit Document, or in any certificate or other document referred to or
provided for in or received by any Lender under this Agreement or any other
Credit Document, or for the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Credit Document or any other
document referred to or provided for herein or therein or for any failure by any
Borrower to perform any of its obligations hereunder or thereunder; (iii) shall
not be required to initiate or conduct any litigation or collection proceedings
hereunder or under any
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other Credit Document except to the extent requested by the Required Lenders,
and then only on terms and conditions which do not, in the reasonable judgment
of such Agent, subject such Agent to any undue risk; and (iv) shall not be
responsible for any action taken or omitted to be taken by it hereunder or under
any other Credit Document or any other document or instrument referred to or
provided for herein or therein or in connection herewith or therewith, except
for its own gross negligence or wilful misconduct. Each Agent may employ agents
and attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The provisions of this ARTICLE 7 are solely for the benefit of
the Agents and the Lenders, and neither the Borrower nor any Subsidiary
Guarantor shall have any rights as a third party beneficiary of any of the
provisions hereof. In performing its functions and duties under this Agreement
and under the other Credit Documents, such Agent shall act solely as agent of
the Issuers and the Lenders and does not assume and shall not be deemed to have
assumed any obligation towards or relationship of agency or trust with or for
the Borrower. The duties of each Agent shall be ministerial and administrative
in nature, and no Agent shall have by reason of this Agreement or any other
Credit Document a fiduciary relationship in respect of any Lender or Issuer.
Each Agent shall remit to the Lenders and the Issuers, as the case may be, as
soon as reasonably practicable following receipt thereof, all payments and other
amounts received by it hereunder for the account of the Lenders or the Issuers.
(b) Unless and until its authority to do so is revoked in
writing by the Required Lenders, the Collateral Agent alone shall be authorized
to determine whether any accounts or inventory of the Borrower or any other
Obligor constitute Eligible Accounts or Eligible Inventory, or whether to impose
or release any reserve, and to exercise its own credit judgment in connection
therewith, which determinations and judgments, if exercised in good faith, shall
exonerate the Collateral Agent from any liability to any Lender or any other
Person for any errors in judgment.
(c) The Syndication Agent, the Lead Manager and the
Arranger shall have no duties or responsibilities hereunder other than for the
arranging of the credit facilities contemplated hereby and the selection of the
Agents, Issuers and Lenders participating therein. The Administrative Agent
shall have the sole and exclusive right and authority to act as the disbursing
and collecting agent for the Lenders with respect to all payments and
collections arising in connection with this Agreement and the other Credit
Documents; and to undertake all other duties and responsibilities delegated to
it hereunder. The Documentation Agent shall have the sole and exclusive right
and authority to execute and deliver each Credit Document (other than this
Credit Agreement) on behalf of the Lenders and accept delivery of each such
agreement delivered by any Borrower or any other Person; and to undertake all
other duties and responsibilities delegated to it hereunder. The Collateral
Agent shall have the sole and exclusive right and authority to (i) act as
collateral agent for the Lenders for purposes of the perfection of all security
interests and Liens created by this Agreement or the Security Documents with
respect to all material items of the Collateral and, subject to the direction of
the Required Lenders, for all other purposes stated therein; (ii) subject to the
direction of the Required Lenders, manage, supervise or otherwise deal with the
Collateral; (iii) except as may be otherwise specifically restricted by the
terms of this Agreement, and subject to the direction of the Required Lenders,
exercise all remedies given to the Collateral Agent with respect to any of the
Collateral, whether
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arising under the Credit Documents relating thereto, under applicable law or
otherwise; and to undertake all other duties and responsibilities delegated to
it hereunder. As to any matters not expressly provided for otherwise by this
Agreement or any other Credit Document, each Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder and thereunder in
accordance with instructions signed by the Required Lenders, and such
instructions of the Required Lenders to the Agent in any action taken or failure
to act pursuant thereto shall be binding on all of the Lenders.
SECTION 7.02. Reliance by Agents. Each Agent shall be
entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telecopier, telegram or cable) believed by
it to be genuine and correct and to have been signed or sent by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants or other experts selected by such Agent.
SECTION 7.03. Defaults. No Agent shall be deemed to have
knowledge of the occurrence of a Default or an Event of Default (other than the
nonpayment of any of the Obligations) unless such Agent has received written
notice from a Lender or any Borrower specifying such Default or Event of Default
and stating that such notice is a "Notice of Default," each of the Lenders
hereby agreeing to promptly notify in writing each Agent of any Default to which
such Lender obtains knowledge. In the event that an Agent receives such a notice
of the occurrence of a Default or an Event of Default, such Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent shall give each
Lender prompt notice of each nonpayment of any of the Obligations whether or not
it has received any notice of the occurrence of such nonpayment.
SECTION 7.04. Rights of Each Agent and its Affiliates as a
Lender. With respect to any Loans or the other financial accommodations made
pursuant hereto, each Agent in its capacity as a Lender hereunder and any
Affiliate of an Agent or such Affiliate in its capacity as a Lender hereunder
shall have the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not acting as an Agent, and the term
"Lender" or "Lenders" shall, unless the context otherwise indicates, include
each Agent in its individual capacity and any Affiliate of each Agent in its
individual capacity. Each Agent and any Affiliate of the Agent may (without
having to account therefor to any Lender) accept deposits from, lend money to
and generally engage in any kind of banking, trust or other business with the
Borrower (and any of the Borrower's Affiliates) as if it were not acting as the
Agent, and the Agent and any Affiliate of the Agent may accept fees and other
consideration from the Borrower (and any of Borrower's Affiliates) (in addition
to any agency fees and arrangement fees heretofore agreed to between the
Borrower and the Agent) for services in connection with this Agreement or any
other Credit Document or otherwise without having to account for the same to the
Lenders and Agent shall not be subject to any liability by reason of its acting
or refraining to act pursuant to any request of the Required Lenders except as a
result of its own wilful misconduct or gross negligence.
SECTION 7.05. Indemnification. Each Lender severally
agrees to indemnify each Agent and hold each Agent harmless from, to the extent
each Agent shall not have been reimbursed by the Borrower or any Subsidiary
Guarantor, ratably in accordance with
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its Commitment, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits (including, without limitation, counsel
fees and disbursements), and costs and expenses (but not fees) such Agent may be
required to bear with respect to any lockbox or collateral collection account
arrangement, or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against each Agent in any way relating to or
arising out of this Agreement or any other Credit Document or any other
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (excluding, unless an Event of Default has
occurred and is continuing, the normal out-of-pocket administrative costs and
expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or any such other documents;
provided that no Lender shall be liable for any of the foregoing in respect of
such Agent to the extent they arise from the gross negligence or wilful
misconduct of such Agent. If any indemnity furnished to an Agent for any purpose
shall, in the opinion of such Agent, be insufficient or become impaired, each
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished.
SECTION 7.06. Payee of Note Treated as Owner. The
Administrative 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 Administrative
Agent and the provisions of SECTION 10.08(c) have been satisfied. Any requests,
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 that Note or of
any Note or Notes issued in exchange therefor or replacement thereof.
SECTION 7.07. Nonreliance on Agents, Issuers or Other
Lenders. Each Lender agrees that it has, independently and without reliance on
any Agent, any Issuer or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower and each Subsidiary Guarantor and decision to enter into this Agreement
and that it will, independently and without reliance upon any Agent, any Issuer
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Credit
Documents. Except as expressly provided in SECTION 7.03, no Agent shall be
required to keep itself (or any Lender) informed as to the performance or
observance by the Borrower of this Agreement or any of the other Credit
Documents or any other document referred to or provided for herein or therein or
to inspect the properties or books of the Borrower or any Subsidiary Guarantor
or any other Person. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by an Agent
hereunder or under the other Credit Documents, no Agent shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the Borrower or any
other Person (or any of their Affiliates) which may come into the possession of
such Agent.
SECTION 7.08. Failure to Act. Except for any action
expressly required of each Agent hereunder or under the other Credit Documents,
each Agent shall in all cases be fully justified in failing or refusing to act
hereunder and thereunder unless it shall receive further
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assurances to its satisfaction by the Lenders of their indemnification
obligations under SECTION 7.05 against any and all liability and expense which
may be incurred by each Agent by reason of taking, continuing to take, or
failing to take any such action. In any event, if an Agent requests in writing
the authorization or direction of the Required Lenders (or all Lenders if
required) and the Lenders do not timely respond to such request in writing, such
Agent may act or refrain from acting with respect to the matters set forth in
such request by such Agent without liability to any of the Lenders with respect
to such matters.
SECTION 7.09. Resignation of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, each Agent
may resign at any time by giving notice thereof to the Lenders, the other Agents
and the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor to such Agent, subject to the consent of the
Borrower, only if no Event of Default is in existence, which consent shall not
be unreasonably withheld or delayed. If no successor to such Agent shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Agent's notice of
resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent. Any successor Agent shall be a Lender hereunder or other bank
or financial institution which has a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as an 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
hereunder. After any retiring Agent's resignation hereunder as Agent, the
provisions of this ARTICLE 7 shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as the
Agent hereunder.
SECTION 7.10. Joinder of Lenders. The rights, remedies,
powers and privileges conferred upon each Agent hereunder and under the other
Credit Documents may be exercised by each Agent without the necessity of the
joinder of any other parties unless otherwise required by applicable law.
SECTION 7.11. Agreements Regarding Collateral. Each Lender
shall have a pro rata interest, in accordance with the percentage of the
Obligations held by such Lender, in the security interests and Liens in and to
the Collateral and any other assets granted and assigned to the Collateral Agent
under the Credit Documents. The Lenders hereby irrevocably authorize the
Collateral Agent, at its option and in its discretion, to release any Lien upon
any Collateral (i) as authorized by this Agreement or any of the other Credit
Documents, (ii) upon the termination of the Commitments and payment or
satisfaction of all of the Obligations, or (iii) constituting Equipment
Collateral sold or disposed of in accordance with the terms of this Agreement if
the Borrower shall certify to the Collateral Agent that the disposition is made
in compliance with the terms of this Agreement (and the Collateral Agent may
rely conclusively on any such certificate, without further inquiry). Except as
expressly authorized or required by this Agreement or applicable law, the
Collateral Agent shall not execute any release or termination of any Lien upon
any of the Collateral without the prior written authorization of all Lenders.
The Collateral Agent shall have no obligation whatsoever to any of the Lenders
to assure that any of the Collateral exists or is owned by any Obligor or is
cared for, protected or insured or has been encumbered, or that the Collateral
Agent's Liens have been properly or sufficiently or lawfully
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created, perfected, protected or enforced or entitled to any particular priority
or to exercise at all or in any manner or under any duty of care, disclosure or
fidelity, or to continue exercising, any of the rights or powers granted or
available to the Collateral Agent pursuant to this Agreement or any of the other
Credit Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, the Collateral Agent
may act in any manner it may deem appropriate, in its discretion, given the
Collateral Agent's own interests in the Collateral in its capacity as one of the
Lenders.
SECTION 7.12. Agent Field Audits. The Collateral Agent
shall promptly, upon receipt thereof, forward to each Lender copies of the
results of any field audits by the Collateral Agent with respect to the
Borrower. The Collateral Agent shall have no liability to any Lender for any
errors in or omissions from any field audit or other examination of any Obligor
or the Collateral, unless such error or omission was the direct result of the
Collateral Agent's willful misconduct.
SECTION 7.13. Designation of Co-Collateral Agent. It is
the purpose of this Agreement that there shall be no violation of any applicable
law denying or restricting the right of financial institutions to transact
business as an agent in any jurisdiction. It is recognized that, in case of
litigation under any of the Credit Documents, or in case the Collateral Agent
deems that by reason of present or future laws of any jurisdiction the
Collateral Agent might be prohibited from exercising any of the powers, rights
or remedies granted to the Collateral Agent or the Lenders hereunder or under
any of the Credit Documents or from holding title to or a Lien upon any
Collateral or from taking any other action which may be necessary hereunder or
under any of the Credit Documents, the Collateral Agent may appoint an
additional Person or Persons as a separate collateral agent or co-collateral
agent which is not so prohibited from taking any of such actions or exercising
any of such powers, rights or remedies. If the Collateral Agent shall appoint an
additional Person as a separate collateral agent or co-collateral agent as
provided above, each and every remedy, power, right, claim, demand or cause of
action intended by this Agreement and any of the Credit Documents and every
remedy, power, right, claim, demand or cause of action intended by this
Agreement and any of the Credit Documents to be exercised by or vested in or
conveyed to the Collateral Agent with respect thereto shall be exercisable by
and vested in such separate collateral agent or co-collateral agent, but only to
the extent necessary to enable such separate collateral agent or co-collateral
agent to exercise such powers, rights and remedies, and every covenant and
obligation necessary to the exercise thereof by such separate collateral agent
or co-collateral agent shall run to and be enforceable by any of them. Should
any instrument from the Lenders be required by the separate collateral agent or
co-collateral agent so appointed by the Collateral Agent in order more fully and
certainly to vest in and confirm to him or it such rights, powers, duties and
obligations, any and all of such instruments shall, on request, be executed,
acknowledged and delivered by the Lenders whether or not a Default or Event of
Default then exists. In case any separate collateral agent or co-collateral
agent, or a successor to either, shall die, become incapable of acting, resign
or be removed, all the estates, properties, rights, power, duties and
obligations of such separate collateral agent or co-collateral agent, so far as
permitted by applicable law, shall vest in and be exercised by the Collateral
Agent until the appointment of a new collateral agent or successor to such
separate collateral agent or co-collateral agent.
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SECTION 7.14. Replacement of Certain Lenders. If a Lender
("Affected Lender") shall have (i) failed to fund its Revolving Loan Commitment
Percentage of any Loan requested by the Borrower which such Lender is obligated
to fund under the terms of this Agreement or otherwise defaulted with respect to
any of its other obligations to the Agents, the Issuers, the Borrower or any
other Lender, and which such failure or other default has not been cured, (ii)
requested compensation from the Borrower under SECTION 8.05 to recover increased
costs incurred by such Lender (or its parent or holding company) which are not
being incurred generally by the other Lenders (or their respective parents or
holding companies), or (iii) delivered (or its respective parents or holding
companies shall have delivered) a notice pursuant to ARTICLE 8 claiming that
such Lender (or its affiliate) is unable to extend Euro-Dollar Loans to the
Borrower for reasons not generally applicable to the other Lenders, then, in any
such case and in addition to any other rights and remedies that any Agent, any
other Lender or the Borrower may have against such Affected Lender, the Borrower
or the Administrative Agent may make written demand on such Affected Lender
(with a copy to the Administrative Agent in the case of a demand by the Borrower
and a copy to the Borrower in the case of a demand by the Administrative Agent)
for the Affected Lender to assign, and such Affected Lender shall assign
pursuant to one or more duly executed Assignment and Acceptances within five (5)
Business Days after the date of such demand, to one or more Lenders willing to
accept such assignment or assignments, or to one or more Assignees approved by
the Administrative Agent, all of such Affected Lender's rights and obligations
under this Agreement (including its Commitments and all Obligations owing to it)
in accordance with SECTION 10.08 hereof; provided, however, that the
Administrative Agent shall have no duty to locate an Assignee for the purposes
of accepting such assignment. The Administrative Agent is hereby irrevocably
authorized to execute one or more Assignment and Acceptances as attorney-in-fact
for any Affected Lender which fails or refuses to execute and deliver the same
within (5) Business Days after the date of such demand. The Affected Lender
shall be entitled to receive, in such case and concurrently with execution and
delivery of each such Assignment and Acceptance, all amounts owed to the
Affected Lender hereunder or under any other Credit Document, including the
aggregate outstanding principal amount of the Obligations owed to such Lender,
together with accrued interest thereon through the date of such assignment. Upon
the replacement of any Affected Lender pursuant to this SECTION 7.14, such
Affected Lender shall cease to have any participation in, entitlement to, or
other right to share in the Liens of the Collateral Agent in any Collateral and
such Affected Lender shall have no further liability to any Agent, any Lender or
any other Person under any of the Credit Documents (except with respect to
events or transactions which occur prior to the replacement of such Affected
Lender), including any commitment to make Loans or purchase any participations
in any Letters of Credit.
ARTICLE 8
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of any Interest Period:
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(a) the Administrative Agent determines that deposits in
Dollars (in the applicable amounts) are not being offered in the
relevant market for such Interest Period, or
(b) the Required Lenders advise the Administrative Agent
that the London Interbank Offered Rate, as the case may be, as
determined by the Administrative Agent will not adequately and fairly
reflect the cost to such Lenders of funding the Euro- Dollar Loans for
such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Lenders, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, the
obligations of the Lenders to make the Euro-Dollar Loans specified in such
notice shall be suspended. Unless the Borrower shall notify the Administrative
Agent at least two (2) Domestic Business Days before the date of any Borrowing
of such type of Euro-Dollar Loans for which a Notice of Borrowing has previously
been given that it elects not to borrow on such date, such Borrowing shall
instead be made as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein or any
existing or future law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof (any
such agency being referred to as an "Authority" and any such event being
referred to as a "Change of Law"), or compliance by any Lender (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority shall make it unlawful or impossible for any Lender (or its
Lending Office) to make, maintain or fund its Euro-Dollar Loans and such Lender
shall so notify the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Lenders and the Borrower, whereupon
until such Lender notifies the Borrower and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Euro-Dollar Loans shall be suspended. Before giving any
notice to the Administrative Agent pursuant to this SECTION, such Lender shall
designate a different Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. If such Lender shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each Euro-Dollar Loan of
such Lender, together with accrued interest thereon and any amount due such
Lender pursuant to SECTION 8.05(a). Concurrently with prepaying each such
Euro-Dollar Loan, the Borrower shall borrow a Base Rate Loan in an equal
principal amount from such Lender (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Lenders), and such Lender shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If
after the date hereof, a Change of Law or compliance by any Lender (or its
Lending Office) or Issuer with any request or directive (whether or not having
the force of law) of any Authority:
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(i) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding with respect to any Euro-Dollar Loan any
such requirement included in an applicable Euro-Dollar Reserve
Percentage) against assets of, deposits with or for the account of, or
credit extended by, any Lender (or its Lending Office) or letters of
credit issued by an Issuer; or
(ii) shall impose on any Lender (or its Lending Office) or
on the London interbank market any other condition affecting its
Euro-Dollar Loan, its Notes or its obligation to make Euro-Dollar
Loans;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Lending Office) or Issuer of making or maintaining any Loan, or to
reduce the amount of any sum received or receivable by such Lender (or its
Lending Office) or Issuer under this Agreement or under its Notes with respect
thereto, by an amount reasonably deemed by such Lender to be material, then,
within thirty (30) days after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduction.
(b) If any Lender or Issuer shall have determined in good
faith that after the Closing Date the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof, or compliance by any Lender (or
its Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any Authority, has or would 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 adoption, change or compliance (taking into consideration
such Lender's policies with respect to capital adequacy) by an amount reasonably
deemed by such Lender to be material, then from time to time, within thirty (30)
days after demand by such Lender, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction.
(c) Each Lender and Issuer will promptly notify the
Borrower and the Administrative Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such Lender to compensation
pursuant to this SECTION and will designate a different Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Lender or Issuer, be otherwise
disadvantageous to such Lender and Issuer. A certificate of any Lender claiming
compensation under this SECTION and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
(d) The provisions of this SECTION 8.03 shall be
applicable with respect to any Participant, Assignee or other Transferee, and
any calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee.
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SECTION 8.04. Base Rate Loans Substituted for Affected
Euro-Dollar Loans. If (i) the obligation of any Lender to make or maintain any
type of Euro-Dollar Loans has been suspended pursuant to SECTION 8.02 or (ii)
any Lender has demanded compensation under SECTION 8.03, and the Borrower shall,
by at least five (5) Euro-Dollar Business Days' prior notice to such Lender
through the Administrative Agent, have elected that the provisions of this
SECTION shall apply to such Lender, then, unless and until such Lender notifies
the Borrower that the circumstances giving rise to such suspension or demand for
compensation no longer apply:
(a) all Loans which would otherwise be made by such
Lender as Euro-Dollar Loans shall be made instead either as Base Rate
Loans, and
(b) after each of its Euro-Dollar Loans has been repaid,
all payments of principal which would otherwise be applied to repay
such Euro-Dollar Loans shall be applied to repay its Base Rate Loans
instead.
SECTION 8.05. Compensation. Upon the request of any Lender,
delivered to the Borrower and the Administrative Agent, the Borrower shall pay
to such Lender such amount or amounts as shall compensate such Lender for any
loss, cost or expense incurred by such Lender as a result of:
(a) any payment or prepayment (pursuant to SECTION 2.09,
2.10, 6.01, 8.02 or otherwise) of a Euro-Dollar Loan on a date other than the
last day of an Interest Period for such Loan; or
(b) if the Lenders permit prepayment of a Euro-Dollar
Loan on any day other than the last day of the Interest Period with respect
thereto, any failure by the Borrower to prepay such Euro-Dollar Loan on the date
for such prepayment specified in the relevant notice of prepayment; or
(c) any failure by the Borrower to borrow a Euro-Dollar
Loan on the date for the Euro-Dollar Borrowing of which such Euro-Dollar Loan is
a part specified in the applicable Notice of Borrowing delivered pursuant to
SECTION 2.02;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (x) the amount of interest which would have accrued on the amount so
paid or prepaid or not prepaid or borrowed for the period from the date of such
payment, prepayment or failure to prepay or borrow to the last day of the then
current Interest Period for such Euro-Dollar Loan (or, in the case of a failure
to prepay or borrow, the Interest Period for such Euro-Dollar Loan which would
have commenced on the date of such failure to prepay or borrow) at the
applicable rate of interest for such Euro-Dollar Loan provided for herein over
(y) the amount of interest (as reasonably determined by such Lender) such Lender
would have paid on deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market.
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ARTICLE 9
CONDITIONS TO BORROWINGS AND ISSUANCE OF LETTERS OF CREDIT
SECTION 9.01. Conditions to Initial Borrowing and Issuance
of any Letter of Credit. The obligation of each Lender to make a Loan and each
Issuer to issue a Letter of Credit on the occasion of the initial Borrowing or
issuance of a Letter of Credit is subject to the satisfaction of the conditions
set forth in SECTION 9.02 and receipt by the Documentation Agent (and, in the
case of the documents described in paragraphs (p) and (q) below, the
Administrative Agent) of the following (as to the documents described in
paragraphs (a), (c), (d) and (e) below, in sufficient number of counterparts for
delivery of a counterpart to each Lender and retention of one counterpart by the
Documentation Agent):
(a) from each of the parties hereto of either (i) a duly
executed counterpart of this Agreement signed by such party or (ii) a
facsimile transmission of such executed counterpart, with the original
to be sent to the Documentation Agent by overnight courier;
(b) a duly executed Revolving Loan Note for the account
of each Lender and a duly executed Term Loan Note for the account of
each Lender, in each case complying with the provisions of SECTION
2.03;
(c) an opinion letter (i) (together with any opinions of
local counsel relied on therein) of Jones, Day, Reavis & Pogue, counsel
for the Borrower, dated as of the Closing Date, substantially in the
form of EXHIBIT B and covering such additional matters relating to the
transactions contemplated hereby as any Agent or any Lender may
reasonably request;
(d) an opinion of King & Spalding, special counsel for
the Agents, dated as of the Closing Date, substantially in the form of
EXHIBIT C and covering such additional matters relating to the
transactions contemplated hereby as any Agent may reasonably request;
(e) a certificate (the "Closing Certificate")
substantially in the form of EXHIBIT H, dated as of the Closing Date,
signed by a Senior Officer of the Borrower, to the effect that (i) no
Default has occurred and is continuing on the date of the first
borrowing and (ii) the representations and warranties of the Borrower
contained in ARTICLE 4 are true on and as of the date of the first
borrowing hereunder;
(f) all documents which the Documentation Agent or any
Lender may reasonably request relating to the existence of the Borrower
or any Subsidiary, the corporate authority for and the validity of this
Agreement and the Notes, and any other matters relevant hereto, all in
form and substance satisfactory to the Documentation Agent, including,
without limitation, a certificate of each Obligor substantially in the
form of EXHIBIT I (the "Officer's Certificate"), signed by the
Secretary or an
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Assistant Secretary of such Obligor, certifying as to the names, true
signatures and incumbency of the officer or officers of the Borrower
and each Subsidiary authorized to execute and deliver the Credit
Documents, and certified copies of the following items: (i) the
Borrower's and each Subsidiary's Certificate of Incorporation, (ii) the
Borrower's and each Subsidiary's Bylaws, (iii) a certificate of good
standing or valid existence of the Secretary of State of the State of
the jurisdiction of its incorporation and of each State in which it is
qualified to do business as a foreign corporation, and (iv) the action
taken by the Board of Directors of the Borrower and each Subsidiary
authorizing such Borrower's and each Subsidiary's execution, delivery
and performance of this Agreement, the Notes and the other Credit
Documents to which the Borrower and each Subsidiary is a party;
(g) an initial Borrowing Base Certificate showing, after
giving effect to any Revolving Loan Borrowings obtained on the Closing
Date and the issuance of any In-Line Standby Letters of Credit and
Commercial Letters of Credit, that the Borrowing Base exceeds the
Working Capital Obligations;
(h) two (2) duly executed counterparts of each of the
Pledge Agreement, each Waiver Agreement requested by the Collateral
Agent, and the Collateral Disclosure Certificate, together with
acknowledgment copies of duly recorded UCC-1 financing statements
(satisfactory in form and content to the Collateral Agent in all
respects) pertaining to the Collateral evidencing recordation thereof
in all filing offices deemed necessary by the Collateral Agent;
(i) receipt of field examinations pertaining to the
Accounts Receivable Collateral and the Inventory Collateral reasonably
acceptable to the Agents;
(j) receipt of confirmations of appraisals pertaining to
the Equipment Collateral reasonably acceptable to the Agents, showing
an orderly liquidation value of not less than Fifty Million Dollars
($50,000,000) for the Equipment Collateral;
(k) receipt of payoff letters in form and substance
satisfactory to the Documentation Agent, from each creditor whose Debts
owed by the Borrower are being refinanced pursuant hereto to the effect
that upon payment of the payoff amount specified therein, its existing
credit facility will be paid in full and terminated, and such
quit-claim deeds, termination statements and other releases as are
necessary to satisfy, terminate and release any Liens obtained
thereunder or in connection therewith will be delivered to the
Documentation Agent upon receipt of such payoff amount;
(l) receipt of lien searches reasonably acceptable to the
Collateral Agent, showing no Liens other than (i) Permitted
Encumbrances, and (ii) Liens to be terminated pursuant to paragraph (k)
above;
(m) evidence of insurance as required by this Agreement;
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(n) delivery to the Documentation Agent of a Telephone
Instruction Letter in substantially the form of EXHIBIT K, and
establishment of the lockboxes and the Collateral Reserve Accounts
pursuant to SECTION 2.14;
(o) payment of all fees owed to the Agents, the Issuers
and the Lenders hereunder;
(p) receipt of an initial Notice of Borrowing;
(q) receipt of a sources and uses of funds statement,
along with an authorization and direction from the Borrower with
respect to any Loans advanced on the Closing Date;
(r) receipt of a duly executed Negative Pledge Agreement;
(s) receipt of the Prudential Notes Standby Letter of
Credit, duly issued by the Special Issuer;
(t) receipt of the Pike Facility Bonds Standby Letter of
Credit, duly issued by the Special Issuer; and
(u) receipt by Wachovia of an intercreditor agreement, in
form and substance satisfactory to it, duly executed by Prudential;
In addition, if the Borrower desires funding of a Euro-Dollar Loan on the
Closing Date, the Administrative Agent shall have received, the requisite number
of days prior to the Closing Date, a funding indemnification letter satisfactory
to it, pursuant to which (i) the Administrative Agent and the Borrower shall
have agreed upon the interest rate, amount of Borrowing and Interest Period for
such Euro-Dollar Loan, and (ii) the Borrower shall indemnify the Lenders from
any loss or expense arising from the failure to close on the anticipated Closing
Date identified in such letter or the failure to borrow such Euro-Dollar Loan on
such date.
SECTION 9.02. Conditions to All Borrowings and Issuances
of Letters of Credit. The obligation of each Lender to make a Loan, and any
Issuer to issue a Letter of Credit, on the occasion of each Borrowing or
issuance of a Letter of Credit is subject to the satisfaction of the following
conditions:
(a) except for Refunding Loans made as Base Rate Loans,
the fact that, immediately before and after such Borrowing or issuance
of a Letter of Credit, no Default shall have occurred and be
continuing;
(b) the fact that the representations and warranties of
the Borrower contained in ARTICLE 4 of this Agreement shall be true on
and as of the date of such Borrowing or issuance of a Letter of Credit;
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(c) the fact that, immediately after any Revolving Loan
Borrowing or the issuance of any Commercial Letter of Credit or In-Line
Standby Letter of Credit, the conditions set forth in clauses (i) and
(ii) of SECTION 2.01(a) shall have been satisfied; and
(d) the fact that all Fees payable upon the making or
issuance thereof have been fully paid and satisfied.
Each Syndicated Borrowing and issuance of a Letter of Credit hereunder shall be
deemed to be a representation and warranty by the Borrower on the date of such
Borrowing or issuance of a Letter of Credit as to the truth and accuracy of the
facts specified in paragraphs (a), (b) and (c) of this SECTION.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including telecopier
or similar writing) and shall be given to such party at its address or
telecopier number set forth on the signature pages hereof or such other address
or telecopier number as such party may hereafter specify for the purpose by
notice to each other party. Each such notice, request or other communication
shall be effective (i) if given by telecopier, when such telecopy is transmitted
to the telecopier number specified in this SECTION and the confirmation is
received, (ii) if given by mail, five (5) Business Days after such communication
is deposited in the mail with first class postage prepaid, addressed as
aforesaid or (iii) if given by any other means, when delivered at the address
specified in this SECTION; provided that notices to the Administrative Agent
under ARTICLE 2 or ARTICLE 8 shall not be effective until received.
SECTION 10.02. No Waivers. The failure of the Borrower to
satisfy, or the waiver by the Agents, the Issuers and the Lenders of, any
condition set forth in ARTICLE 9 shall not constitute a waiver of any such
condition with respect to any subsequent advance of a Loan, unless such waiver
is expressly agreed to in writing as required by SECTION 10.06. No failure or
delay by any Agent, any Issuer or any Lender in exercising any right, power or
privilege hereunder or under any Note or other Credit Document shall operate as
a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 10.03. Expenses; Documentary Taxes. The Borrower
shall pay (a) all out-of-pocket expenses (including, without limitation, all
reasonable attorney and paralegal fees and expenses, recording costs of the
Agents and the Issuers incurred in connection with this Agreement and the other
Credit Documents, including, without limitation, (i) all costs, fees and taxes
pertaining to the obtaining, preparation or filing of all equipment appraisals,
Lien Searches, UCC-1 financing statements (including, without limitation, any
release thereof), recording or
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intangible taxes (ii) all fees and disbursements of special counsel for the
Lenders, the Agents, and the Issuers, (iii) all costs and fees incurred in
connection with the preparation, negotiation, administration and execution and
delivery of this Agreement and the other Credit Documents, and any waiver or
consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder, (iv) sums paid or incurred
to pay for any amount or to take any action required of the Borrower hereunder
or under this Agreement that the Borrower fails to pay or take; (v) costs and
expenses of preserving and protecting the Collateral; and (b) during the
existence of an Event of Default all costs and expenses of the Agents, the
Issuers and the Lenders (including reasonable attorney and paralegal fees and
expenses) paid or incurred to obtain payment of the Obligations, enforce the
Lien in the Collateral, sell or otherwise realize upon the Collateral, and
otherwise enforce the provisions hereof or of any Credit Document or to defend
any claim made or threatened against any of the Agents, the Issuers or the
Lenders arising out of the transactions contemplated hereby (including, without
limitation, preparations for and consultations concerning any such matters). The
foregoing shall not be construed to limit any other provisions hereof, or of any
Credit Document regarding costs and expenses to be paid by the Borrower or any
Subsidiary. In the event that the Borrower or any Subsidiary Guarantor becomes a
debtor under the Bankruptcy Code, each Agent's, each Issuer's and each Lender's
secured claim in such case shall include interest on the Obligations and all
fees, costs and charges provided for herein (including, without limitation,
reasonable attorneys' fees actually incurred), all to the extent allowed by the
Bankruptcy Code. The Borrower shall indemnify the Agents, the Issuers, and the
Lenders against any transfer taxes, documentary taxes, assessments or charges
made by any Authority by reason of the execution and delivery of this Agreement
or the other Credit Documents.
SECTION 10.04. Indemnification. The Borrower shall
indemnify the Agents, the Issuers, the Lenders and each Affiliate thereof and
their respective directors, officers, employees and agents from, and hold each
of them harmless against, any and all losses, liabilities, claims or damages to
which any of them may become subject, insofar as such losses, liabilities,
claims or damages arise out of or result from any actual or proposed use by the
Borrower or any Subsidiary of the proceeds of any extension of credit by any
Agent, and Issuer or any Lender hereunder or breach by the Borrower or any
Subsidiary of this Agreement or any other Credit Document or from any
investigation, litigation (including, without limitation, any actions taken by
any Agent, any Issuer or any Lender to enforce this Agreement or any of the
other Credit Documents) or other proceeding (including, without limitation, any
threatened investigation or proceeding) relating to the foregoing, and the
Borrower shall reimburse each Agent and each Lender, and each Affiliate thereof
and their respective directors, officers, employees and agents, upon demand for
any expenses (including, without limitation, legal fees) incurred in connection
with any such investigation or proceeding; but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of the gross
negligence or wilful misconduct of the Person (or agent thereof) to be
indemnified.
SECTION 10.05. Setoff; Sharing of Setoffs. (a) Each Obligor
hereby grants to each Agent, each Issuer and each Lender a Lien on all
Obligations owing to them from the Borrower upon all deposits or deposit
accounts, of any kind, or any interest in any deposits or deposit accounts
thereof, now or hereafter pledged, mortgaged, transferred or assigned to any
Agent, any Issuer or any such Lender or otherwise in the possession or control
of any Agent, any
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Issuer or any such Lender for any purpose for the account or benefit of such
Obligor and including any balance of any deposit account or of any credit of any
such Obligor with any Agent, any Issuer or any such Lender, whether now existing
or hereafter established hereby authorizing any Agent such Issuer or such Lender
at any time or times with or without prior notice to apply such balances or any
part thereof to such of the Obligations as are owing to such Agent, Issuer or
Lender, then past due and in such amounts as they may elect, and whether or not
the Collateral or any other collateral, if any, or the responsibility of other
Persons primarily, secondarily or otherwise liable may be deemed adequate. The
Collateral Agent appoints, authorizes and directs each other Agent, each Issuer
and each Lender to act as a co-collateral agent for the Collateral Agent with
respect to any Balances Collateral held by such Person from time to time. For
the purposes of this paragraph, all remittances and property shall be deemed to
be in the possession of any Agent, any Issuer or any Lender as soon as the same
may be put in transit to it by mail or carrier or by other bailee.
(b) Each Lender agrees that if it shall, by exercising
any such right of setoff or counterclaim or resort to collateral security or
otherwise, receive payment of a proportion of the aggregate amount of the
Obligations in respect of any Loans or Shared Risk Letter of Credit Obligations
which is greater than the proportion received by any other Lender in respect of
such Obligations, the Lender receiving such proportionately greater payment
shall purchase such participations in the Loans or Shared Risk Letter of Credit
Obligations owing to such other Lenders, and such other adjustments shall be
made, as may be required so that all such payments shall be shared by the
Lenders and the Administrative Agent pro rata; provided that (i) nothing in this
SECTION shall impair the right of any Lender to exercise any right of setoff or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of indebtedness of the Borrower other than its indebtedness under the
Loans or such Shared Risk Letter of Credit Obligations, and (ii) if all or any
portion of such payment so received by the purchasing Lender is thereafter
recovered, such purchase from each other Lender shall be rescinded and such
other Lender shall repay to the purchasing Lender the purchase price of such
participation to the extent of such recovery together with an amount equal to
such other Lender's ratable share (according to the proportion of (x) the amount
of such other Lender's required repayment to (y) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. Each Obligor
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Loan, or risk participant with respect
to any Shared Risk Letter of Credit Obligations, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of setoff or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of such Obligor in the
amount of such participation.
SECTION 10.06. Amendments and Waivers. (a) Any provision of
this Agreement, the Notes or any other Credit Documents may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Borrower, each Subsidiary Guarantor and the Required Lenders (and, if the rights
or duties of any Agent or Issuer are affected thereby, by such Agent or such
Issuer); provided that, no such amendment or waiver shall, unless signed by all
Lenders, (i) change the Commitment of any Lender or subject any Lender to any
additional obligation, (ii) change the principal of or rate of interest on any
Loan or any fees (other than fees payable to any Agents or Issuers) hereunder,
(iii) change the
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Termination Date or any other date fixed for any payment of principal of or
interest on any Loan or any fees hereunder, (iv) change the amount of principal,
interest or fees due on any date fixed for the payment thereof, (v) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the percentage of Lenders, which shall be required for the Lenders or
any of them to take any action under this SECTION or any other provision of this
Agreement, (vi) change the manner of application of any payments made under this
Agreement or the Notes, or the provisions with respect to pro rata treatment
among Lenders (including, without limitation, as to sharing of payments and
expenses), (vii) except as expressly provided in this Agreement or any of the
other Credit Documents, release or substitute, or agree to subordination of, all
or any substantial part of the Collateral, (viii) release any Guarantee given to
support payment of the Loans, (ix) change the definitions of "Borrowing Base,"
"Eligible Accounts," "Eligible Inventory," or "Required Lenders"; (x) change the
provisions of any of ARTICLE 7 or SECTIONS 10.04 or 10.20, (xi) change the joint
and several nature of the obligations of the Borrower and each Subsidiary
Guarantor, or the several nature of the obligations of the Lenders under their
respective Commitments, or (xii) change the dollar amounts set forth in clause
(ii)(a) and (iii) of the definition of Obligations.
(b) The Borrower will not solicit, request or negotiate
for or with respect to any proposed waiver or amendment of any of the provisions
of this Agreement except through the Administrative Agent, or unless each Lender
shall be informed thereof by the Borrower and shall be afforded an opportunity
of considering the same and shall be supplied by the Borrower with sufficient
information to enable it to make an informed decision with respect thereto.
Executed or true and correct copies of any waiver or consent effected pursuant
to the provisions of this Agreement shall be delivered by the Borrower to the
Administrative Agent (for distribution to each Lender) forthwith following the
date on which the same shall have been executed and delivered by the requisite
percentage of Lenders. The Borrower will not, directly or indirectly, pay or
cause to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, to any Lender (in its capacity as such) as
consideration for or as an inducement to the entering into by such Lender of any
waiver or amendment of any of the terms and provisions of this Agreement unless
such remuneration is concurrently paid, on the same terms, ratably to all such
Lenders.
SECTION 10.07. No Margin Stock Collateral. Each of the
Lenders represents to each Agent, each Issuer and each of the other Lenders that
it in good faith is not, directly or indirectly (by negative pledge or
otherwise), relying upon any Margin Stock as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 10.08. Successors and Assigns. (a) The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided that neither the
Borrower nor any Subsidiary Guarantor may assign or otherwise transfer any of
its rights under this Agreement.
(b) Any Lender may at any time sell to one or more
Persons, provided that any such Person is a commercial bank or other financial
institution, or an Affiliate thereof (each a "Participant") participating
interests in any Loan owing to such Lender, any Note held by such Lender, any
Commitment hereunder or any other interest of such Lender hereunder; provided,
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however, that if a Lender is selling a participation in only a portion of its
Commitment or any other interest of such Lender hereunder, the participation
being sold (determined as of the effective date of the sale of the
participation) shall be in an amount not less than Five Million Dollars
($5,000,000). In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Note for
all purposes under this Agreement, and the Borrower and the Agents shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. In no event shall a Lender
that sells a participation be obligated to the Participant to take or refrain
from taking any action hereunder except that such Lender may agree that it will
not (except as provided below), without the consent of the Participant, agree to
(i) the change of any date fixed for the payment of principal of or interest on
the related loan or loans, (ii) the change of the amount of any principal,
interest or fees due on any date fixed for the payment thereof with respect to
the related loan or loans, (iii) the change of the principal of the related loan
or loans, (iv) any change in the rate at which either interest is payable
thereon or (if the Participant is entitled to any part thereof) fee is payable
hereunder from the rate at which the Participant is entitled to receive interest
or fee (as the case may be) in respect of such participation, (v) the release or
substitution of all or any substantial part of the collateral (if any) held as
security for the Loans, or (vi) the release of any Guarantee given to support
payment of the Loans. Each Lender selling a participating interest in any Loan,
Note, Commitment or other interest under this Agreement, will, within ten (10)
Domestic Business Days of such sale, provide the Borrower and the Administrative
Agent with written notification stating that such sale has occurred and
identifying the Participant and the interest purchased by such Participant. The
Borrower agrees that each Participant shall be entitled to the benefits of
ARTICLE 8 with respect to its participation in Loans outstanding from time to
time.
(c) Any Lender may at any time assign to one or more
commercial banks or other financial institutions organized under laws of the
United States of America or any state and having total assets in excess of Five
Billion Dollars ($5,000,000,000) or an affiliate of any such bank or any other
financial institution acceptable to the Administrative Agent in its sole
discretion (each an "Assignee") all or a proportionate part of its rights and
obligations under this Agreement, the Notes and the other Credit Documents, and
such Assignee shall assume all such rights and obligations, pursuant to an
Assignment and Acceptance, executed by such Assignee, such transferor Lender and
the Administrative Agent (and, in the case of an Assignee that is not then a
Lender, subject to clause (iii) below, by the Borrower); provided that (i) no
interest may be sold by a Lender pursuant to this paragraph (c) unless the
Assignee shall agree to assume ratably equivalent portions of the transferor
Lender's Commitment, (ii) if a Lender is assigning only a portion of its
Commitment, then, the amount of the Commitment being assigned (determined as of
the effective date of the assignment) shall be in an amount not less than Five
Million Dollars ($5,000,000), (iii) no interest may be sold by a Lender pursuant
to this paragraph (c) to any Assignee that is not then a Lender (or an Affiliate
of a Lender) without the prior written consent of the Administrative Agent, and,
unless a Default or Event of Default is in existence, the Borrower, and (iv) a
Lender may not have more than three (3) Assignees that are not then Lenders at
any one time. Upon (A) execution of the Assignment and Acceptance by such
transferor Lender, such Assignee, the Administrative Agent and (if applicable)
the Borrower, (B) delivery of an executed copy of the Assignment and Acceptance
to the Borrower
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and the Administrative Agent, (C) payment by such Assignee to such transferor
Lender of an amount equal to the purchase price agreed between such transferor
Lender and such Assignee, and (D) payment of a processing and recordation fee of
Three Thousand Dollars ($3,000) to the Administrative Agent, such Assignee shall
for all purposes be a Lender party to this Agreement and shall have all the
rights and obligations of a Lender under this Agreement to the same extent as if
it were an original party hereto with a Commitment as set forth in such
instrument of assumption, and the transferor Lender shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by the Borrower, the Lenders or the Agents shall be required. Upon the
consummation of any transfer to an Assignee pursuant to this paragraph (c), the
transferor Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note is issued to each of
such Assignee and such transferor Lender.
(d) Subject to the provisions of SECTION 10.09, the
Borrower authorizes each Lender, each Agent and each Issuer to disclose to any
Participant, Assignee or other transferee (each a "Transferee") and any
prospective Transferee any and all financial information in such Lender's
possession concerning the Borrower which has been delivered to such Lender,
Agent or Issuer by the Borrower pursuant to this Agreement or which has been
delivered to such Lender, Agent or Issuer by the Borrower in connection with
such Lender's, Agent's or Issuer's credit evaluation prior to entering into this
Agreement.
(e) No Transferee shall be entitled to receive any
greater payment under SECTION 2.11 or 8.03 than the transferor would have been
entitled to receive with respect to the rights transferred, unless such transfer
is made with the Borrower's prior written consent or by reason of the provisions
of SECTION 2.11, 8.02 or 8.03 requiring such Lender to designate a different
Lending Office under certain circumstances or at a time when the circumstances
giving rise to such greater payment did not exist.
(f) Anything in this SECTION 10.08 to the contrary
notwithstanding, any Lender may assign and pledge all or any portion of the
Loans and/or obligations owing to it to any Federal Reserve Bank or the United
States Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank, provided that any payment in respect of such assigned
Loans and/or obligations made by the Borrower to the assigning and/or pledging
Lender in accordance with the terms of this Agreement shall satisfy the
Borrower's obligations hereunder in respect of such assigned Loans and/or
obligations to the extent of such payment. No such assignment shall release the
assigning and/or pledging Lender from its obligations hereunder.
SECTION 10.09. Confidentiality. Each Lender agrees to
exercise commercially reasonable efforts to keep any information delivered or
made available by the Borrower to it pursuant to SECTION 4.04 or 5.01, or any
other information which is clearly indicated to be confidential information,
confidential from anyone other than persons employed or retained by such Agent,
Issuer or Lender who are or are expected to become engaged in evaluating,
approving, structuring or administering the transactions contemplated hereby ;
provided that nothing herein shall prevent any Agent, Issuer or Lender from
disclosing such
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information (i) to any other Agent, Issuer or Lender, (ii) upon the order of any
court or administrative agency, (iii) upon the request or demand of any
regulatory agency or authority having jurisdiction over such Agent, Issuer or
Lender, (iv) which has been publicly disclosed, (v) to the extent reasonably
required in connection with any litigation to which any Agent, Issuer or Lender
or their respective Affiliates may be a party, (vi) to the extent reasonably
required in connection with the exercise of any remedy hereunder, (vii) to such
Agent's, Issuer's or Lender's legal counsel and independent auditors and (viii)
to any actual or proposed Participant, Assignee or other Transferee of all or
part of its rights hereunder which has agreed in writing to be bound by the
provisions of this SECTION 10.09; provided that should disclosure of any such
confidential information be required by virtue of clause (ii) of the immediately
preceding sentence, to the extent permitted by law, any relevant agent, Issuer
or Lender shall promptly notify the Borrower of same so as to allow the Borrower
to seek a protective order or to take any other appropriate action; provided,
further, that, no Agent, Issuer or Lender shall be required to delay compliance
with any directive to disclose any such information so as to allow the Borrower
to effect any such action.
SECTION 10.10. Representation by Lenders. Each Lender
hereby represents that it is a commercial Lender or financial institution which
makes loans in the ordinary course of its business and that it will make its
Loans hereunder for its own account in the ordinary course of such business;
provided that, subject to SECTION 10.08, the disposition of the Note or Notes
held by that Lender shall at all times be within its exclusive control.
SECTION 10.11. Obligations Several. The obligations of each
Lender, each Agent and each Issuer hereunder are several, and no Agent, Issuer
or Lender shall be responsible for the obligations or commitment of any other
Lender, Agent or Issuer hereunder. Nothing contained in this Agreement and no
action taken by any Agent, Issuer or Lender pursuant hereto shall be deemed to
constitute any of them to be a partnership, an association, a joint venture or
any other kind of entity. The amounts payable at any time hereunder to each
Agent, Issuer or Lender hereunder shall be a separate and independent Debt, and
each Agent, Issuer or Lender shall be entitled to protect and enforce its rights
arising out of this Agreement or any other Credit Document and it shall not be
necessary for any other Agent, Issuer or Lender to be joined as an additional
party in any proceeding for such purpose.
SECTION 10.12. Georgia Law. This Agreement, each Note and
each other Credit Documents shall be construed in accordance with and governed
by the internal laws of the State of Georgia.
SECTION 10.13. Severability. In case any one or more of the
provisions contained in this Agreement, the Notes or any of the other Credit
Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 10.14. Interest. (a) 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
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(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, the Agents
and the Issuers 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 Administrative Agent and the Lenders do
not intend to collect any unearned interest in the event of any such
acceleration. All monies paid to any Agent, any Issuer or any Lender 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 any Agent, Issuer or 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 any Agent, Issuer or 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 Agents, the Issuers and the Lenders each 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.
(b) Pursuant to O.C.G.A. ss.7-4-2, the Borrower, the
Issuers, the Agents and the Lenders hereby agree that the only changes imposed
or to be imposed by the Issuers, the Agents or the Lenders upon the Borrower for
the use of money in connection with the Loans is and will be the interest
required to be paid under the provisions of SECTION 2.05 of this Agreement and
the related provisions of the Notes, and that the fees payable pursuant to
SECTION 2.06 are and shall be deemed to be compensation for services and are not
and shall not be deemed to be interest or any other charge for the use,
forbearance or detention of money.
SECTION 10.15. Interpretation. No provision of this
Agreement or any of the other Credit Documents shall be construed against or
interpreted to the disadvantage of any party hereto by any court or other
governmental or judicial authority by reason of such party having or being
deemed to have structured or dictated such provision.
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SECTION 10.16. WAIVER OF JURY TRIAL; CONSENT TO
JURISDICTION. EACH OF THE BORROWER, THE LENDERS, THE ISSUERS, AND THE AGENTS
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY OF THE
OTHER CREDIT DOCUMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, (B) SUBMITS TO THE NONEXCLUSIVE PERSONAL JURISDICTION IN THE STATE OF
GEORGIA, THE COURTS THEREOF AND THE UNITED STATES DISTRICT COURTS SITTING
THEREIN, FOR THE ENFORCEMENT OF THIS AGREEMENT, THE NOTES AND THE OTHER CREDIT
DOCUMENTS, (C) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAW OF ANY
JURISDICTION TO OBJECT ON ANY BASIS (INCLUDING, WITHOUT LIMITATION,
INCONVENIENCE OF FORUM) TO JURISDICTION OR VENUE WITHIN THE STATE OF GEORGIA FOR
THE PURPOSE OF LITIGATION TO ENFORCE THIS AGREEMENT, THE NOTES OR THE OTHER
CREDIT DOCUMENTS, AND (D) AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN
THE MANNER PRESCRIBED IN SECTION 10.01 FOR THE GIVING OF NOTICE TO THE
BORROWERS. NOTHING HEREIN CONTAINED, HOWEVER, SHALL PREVENT ANY AGENT FROM
BRINGING ANY ACTION OR EXERCISING ANY RIGHTS AGAINST ANY SECURITY AND AGAINST
THE BORROWERS PERSONALLY, AND AGAINST ANY ASSETS OF THE BORROWERS, WITHIN ANY
OTHER STATE OR JURISDICTION.
SECTION 10.17. Counterparts. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 10.18. Source of Funds -- ERISA. Each of the
Lenders hereby severally (and not jointly) represents to the Borrower that no
part of the funds to be used by such Lender to fund the Loans hereunder from
time to time constitutes (i) assets allocated to any separate account maintained
by such Lender in which any employee benefit plan (or its related trust) has any
interest nor (ii) any other assets of any employee benefit plan. As used in this
SECTION, the terms "employee benefit plan" and "separate account" shall have the
respective meanings assigned to such terms in SECTION 3 of ERISA.
SECTION 10.19. Credit Inquiries. The Borrower hereby
authorizes and permits each Agent, Issuer and Lender, at its discretion and
without any obligation to do so, to respond to credit inquiries from third
parties concerning the Borrower or any of its Subsidiaries.
SECTION 10.20. Consequential Damages. NONE OF THE LENDERS,
NOR ANY OF THE ISSUERS, OR THE AGENTS, SHALL BE RESPONSIBLE OR LIABLE TO THE
BORROWER OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
SECTION 10.21. Entire Agreement. This Agreement, together
with the other Loan Documents, constitute the entire agreement among the parties
hereto with respect to the
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subject matter hereof, and supersede and replace any agreement, written or oral,
existing between or among the parties hereto in respect of such subject matter.
Without limitation, the Prior Loan Agreement, together with all "Loan Documents"
(as defined therein) executed in connection therewith, are superseded and
replaced, in their entirety, hereby and by the other Loan Documents, and any
"Event of Default" (as defined therein) under the Prior Loan Agreement
heretofore existing, is hereby waived by the Lenders.
SECTION 10.22. Continuing Effect. This Agreement, together
with all other Credit Documents, shall continue in full force and effect,
notwithstanding the termination of any one, or more or all of the Commitments or
the payment in full of one, or more of all of the Obligations, unless and until
all Commitments have been terminated and all Obligations (including, without
limitation, any Letter of Credit Obligations in the nature of contingent
obligations) have been fully paid and satisfied, each in accordance with the
terms and conditions hereof and of the other Credit Documents.
[SIGNATURES ARE CONTAINED ON THE FOLLOWING PAGES.]
-106-
<PAGE> 117
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal, by their respective authorized
officers as of the day and year first above written.
"BORROWER"
THOMASTON MILLS, INC.
By: /s/ Neil H. Hightower (SEAL)
-------------------------------------
Neil H. Hightower
President and Chief Executive Officer
Attest: /s/ A. William Ott
---------------------------------
A. William Ott
Vice President-Finance
(CORPORATE SEAL)
Address for Notices:
115 East Main Street
P.O. Box 1131
Thomaston, Georgia 30286
Attention: Vice President-Finance
Telecopier No. (706) 646-5094
Confirmation No. (706) 647-7131
With Copy(ies) to:
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
Attention: John Edwards
Telecopier No. (404) 581-3880
Confirmation No. (404) 521-3939
-107-
<PAGE> 118
"SUBSIDIARY GUARANTOR"
THOMASTON MILLS FSC, INC.
By: /s/ Neil H. Hightower (SEAL)
-------------------------------------
Neil H. Hightower
President and Chief Executive Officer
Attest: /s/ A. William
--------------------------------
A. William Ott
Vice President-Finance
(CORPORATE SEAL)
Address for Notices:
115 East Main Street
P.O. Box 1131
Thomaston, Georgia 30286
Attention: Vice President-Finance
Telecopier No. (706) 646-5094
Confirmation No. (706) 647-7131
With Copy(ies) to:
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
Attention: John Edwards
Telecopier No. (404) 581-8330
Confirmation No. (404) 521-3939
-108-
<PAGE> 119
COMMITMENTS SUNTRUST BANK, ATLANTA,
as Administrative Agent,
Syndication Agent and as a Lender (SEAL)
Revolving Loan
Commitment:
$20,466,000.00
By: /s/ David W. Penter
-----------------------------------
Term Loan Name: David W. Penter
Commitment: -----------------------------
$8,186,400.00 Title: Senior Vice President
-----------------------------
By: /s/ Kim A. Willis
----------------------------------
Name: Kim A. Willis
-----------------------------
Title: Banking Officer
----------------------------
(CORPORATE SEAL)
Pike Facility Lending Office
Bonds Standby SunTrust Bank, Atlanta
Letter of Credit 25 Park Place
Commitment: 24th Floor
$1,766,898.00 Atlanta, Georgia 30303
Attention: Kim Willis
Telecopier Number: (404) 575-2594
Confirmation Number:
------------------
With Copy(ies) to:
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
Attention: G. Lemuel Hewes
Telecopy Number: 404-572-5149
Confirmation Number: 404-572-4862
<PAGE> 120
COMMITMENTS WACHOVIA BANK, N.A.,
as Special Issuer, Documentation Agent,
Collateral Agent, and as a Lender (SEAL)
Revolving Loan
Commitment:
$15,169,500.00
By: /s/ James T. Glemon, III
Term Loan -------------------------------
Commitment: Name: James T. Glemon, III
$6,067,800.00 -------------------------
Title: Asst. Vice President
------------------------
Lending Office
Pike Facility Bonds Wachovia Bank, N.A.
Standby Letter of 191 Peachtree Street, N.E.
Credit Commitment: Mail Code 212
$1,309,634.00 Atlanta, Georgia 30303-1757
Attention: Structured Finance
Telecopier number: 404-332-6920
Confirmation number: 404-332-6559
Prudential Notes Standby
Letter of Credit With Copy(ies) to:
Commitment:
$13,207,027.00 King & Spalding
191 Peachtree Street
Commercial Letters of Atlanta, Georgia 30303-1763
Credit Commitment: Attention: Gerald T. Woods
$1,500,000.00 Telecopier number: 404-572-5149
Confirmation number: 404-572-4786
<PAGE> 121
COMMITMENTS NATIONSBANK, N.A.,
as a Lender (SEAL)
Revolving Loan
Commitment:
$9,364,500.00
By: /s/ E. Phifer Helms
------------------------------
Name: E. Phifer Helms
Title: Senior Vice-President
Term Loan
Commitment:
$3,745,800.00 Lending Office
NationsBank, N.A.
Pike Facility Bonds 101 N. Tryon St., 15th Floor
Standby Letter of Credit -------------------------------------
Commitment: Charlotte, NC 28255
$808,468.00 -------------------------------------
-------------------------------------
Attention: Robert L. Woodbury
---------------------------
Telecopier Number: 704-386-8694
-------------------
Confirmation Number: 704-386-7429
-----------------
(TELEPHONE)
With Copy(ies) to:
-------------------------------------
-------------------------------------
-------------------------------------
Attention:
---------------------------
Telecopier Number:
-------------------
Confirmation Number:
-----------------
<PAGE> 122
TOTAL COMMITMENTS:
Revolving Loans:
$45,000,000.00
Term Loans
$18,000,000.00
Pike Facility Bond
Letter of Credit
$3,885,000.00
Prudential Notes Standby
Letter of Credit
Commitment:
$13,207,027.00
Commercial Letters of
Credit Commitment:
$1,500,000.00
<PAGE> 123
SUNTRUST EQUITABLE SECURITIES
CORPORATION, as Arranger and Lead
Manager
By: /s/ Robert F. Marws
-----------------------------------
Name: Robert F. Marws
----------------------------
Title: Managing Director
----------------------------
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
(CORPORATE SEAL)
Address for Notices:
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
Telecopier Number:
-------------------
Confirmation Number:
-----------------
With Copy(ies) to:
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
Telecopier Number:
-------------------
Confirmation Number:
-----------------
<PAGE> 1
EXHIBIT 13.1
NEWS
RELEASE
FIRST QUARTER REPORT
1999
TO THE SHAREHOLDERS:
Thomaston Mills' sales for the first fiscal quarter ended October 3, 1998 were
$61.0 million, down 16.7% from the same quarter the year before. The Company
had a net after tax loss for the quarter of $3,992,000 or $.61 per share. The
largest sales decreases occurred in the Consumer Products area and Industrial
area.
The Company is in a turnaround mode, and many changes are being made to make
the Company stronger. The Griffin, Georgia yarn plant is being shut down as of
November 16, 1998, and the equipment and building will be sold. It was
determined that the Company's yarn requirements could be made in one plant
instead of two. This will naturally improve capacity utilization at the
Thomaston Division.
The Company is also being reorganized to better serve our customers. The new
organization is along product and customer lines with Sales, Manufacturing,
Product Development and Quality Control reporting to a division president. H.
Stewart Davis is the new President of the Consumer Products Division, and
George H. Hightower, Jr. is the new President of the Apparel Fabrics Division.
Barry Hancock was elected to the position of Vice President - Greige Apparel
Manufacturing.
The Company continues to operate in a difficult environment, but management is
committed to making the necessary changes to make the Company successful.
Sincerely,
/s/ Neil H. Hightower
Neil H. Hightower
President and CEO
October 27, 1998
<PAGE> 2
THOMASTON MILLS, INC.
CONDENSED STATEMENTS OF OPERATIONS
(Dollars in Thousands except Per Share Data)
(Unaudited)
<TABLE>
<CAPTION>
FOURTEEN WEEKS Thirteen Weeks
ENDED Ended
OCTOBER 3, September 27,
1998 1997
- ------------------------------------------------------------------------------------------
<S> <C> <C>
Net Sales $ 60,988 $ 73,212
Cost of Sales 60,621 71,305
- ------------------------------------------------------------------------------------------
367 1,907
Selling, general and administrative expenses 5,365 5,154
Other income (expense)-net 144 103
- ------------------------------------------------------------------------------------------
(4,854) (3,144)
Interest expense 1,585 1,327
- ------------------------------------------------------------------------------------------
Income (loss) before income taxes (6,439) (4,471)
Provision for income taxes (benefit) (2,447) (1,699)
- ------------------------------------------------------------------------------------------
Net income (loss) $ (3,992) $ (2,772)
==========================================================================================
Average Number of Shares 6,540,046 6,539,996
Basic and diluted earnings (loss) per share $ (0.6100) $ (0.4200)
Dividends paid per share $ 0.0375 $ 0.0750
- ------------------------------------------------------------------------------------------
</TABLE>
CONDENSED BALANCE SHEETS
(Dollars in Thousands)
(Unaudited)
<TABLE>
<CAPTION>
OCTOBER 3, SEPTEMBER 27,
1998 1997
==========================================================================================
<S> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents $ 532 $ 696
Accounts receivable 40,412 51,422
Less allowance for uncollectible accounts (871) (500)
Inventories 53,034 51,710
Other current assets 12,918 7,225
- ------------------------------------------------------------------------------------------
Total Current Assets 106,025 110,553
Property, Plant and Equipment 252,011 251,041
Less allowance for depreciation (172,240) (162,354)
Other assets 4,680 2,303
- ------------------------------------------------------------------------------------------
$ 190,476 $ 201,543
==========================================================================================
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Accounts payable $ 15,312 $ 18,385
Accrued liabilities 7,765 9,635
Current portion of capital lease obligations 372 387
Current portion of long-term debt 1,667 2,648
- ------------------------------------------------------------------------------------------
Total Current Liabilities 25,116 31,055
Obligations under capital leases 1,270 1,037
Long-term debt 74,200 66,521
Deferred income taxes 4,907 5,758
Other liabilities 3,005 973
Shareholders' Equity 81,978 96,199
- ------------------------------------------------------------------------------------------
$ 190,476 $ 201,543
==========================================================================================
</TABLE>
FORWARD-LOOKING STATEMENTS: CERTAIN OF THE ABOVE STATEMENTS CONTAINED HEREIN
CONSTITUTE FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF THE PRIVATE
SECURITIES LITIGATION REFORM ACT OF 1996. SUCH FORWARD-LOOKING STATEMENTS
INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES AND OTHER FACTORS WHICH MAY
CAUSE THE ACTUAL RESULTS, PERFORMANCE OR ACHIEVEMENTS OF THE COMPANY TO BE
MATERIALLY DIFFERENT FROM ANY FUTURE RESULTS, PERFORMANCE OR ACHIEVEMENTS
EXPRESS OR IMPLIED BY SUCH FORWARD-LOOKING STATEMENTS. SUCH FACTORS INCLUDE,
AMONG OTHER THINGS, BUSINESS CONDITIONS, VOLATILITY OF COMMODITIES MARKETS,
ABILITY TO CONTROL OPERATING COSTS, DEVELOPING SUCCESSFUL NEW PRODUCTS AND
MAINTAINING EFFECTIVE PRICING AND PROMOTION OF ITS PRODUCTS.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUL-03-1999
<PERIOD-START> JUN-28-1998
<PERIOD-END> OCT-03-1998
<CASH> 532
<SECURITIES> 0
<RECEIVABLES> 40,412
<ALLOWANCES> 871
<INVENTORY> 53,034
<CURRENT-ASSETS> 106,025
<PP&E> 252,011
<DEPRECIATION> 172,240
<TOTAL-ASSETS> 190,476
<CURRENT-LIABILITIES> 25,116
<BONDS> 31,700
0
0
<COMMON> 7,494
<OTHER-SE> 74,484
<TOTAL-LIABILITY-AND-EQUITY> 190,476
<SALES> 60,988
<TOTAL-REVENUES> 61,132
<CGS> 60,621
<TOTAL-COSTS> 60,621
<OTHER-EXPENSES> 5,365
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,585
<INCOME-PRETAX> (6,439)
<INCOME-TAX> (2,447)
<INCOME-CONTINUING> (3,992)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,992)
<EPS-PRIMARY> (.61)
<EPS-DILUTED> (.61)
</TABLE>
