EXHIBIT (10)(a)
---------------
$130,000,000
CREDIT AGREEMENT
dated as of
May 26, 2000
among
XXXXXXXX XXXXX, INC.,
The Banks Listed Herein
WACHOVIA BANK, N.A.,
as Administrative Agent,
FIRST UNION NATIONAL BANK,
as Syndication Agent
and
BANK ONE, N.A.,
as Documentation Agent
NY2:\954323\02
TABLE OF CONTENTS
CREDIT AGREEMENT
Page
ARTICLE I DEFINITIONS ............................................................................................1
Section 1.01 Definitions............................................................................1
Section 1.02 Accounting Terms and Determinations...................................................23
Section 1.03 References............................................................................23
Section 1.04 Use of Defined Terms..................................................................23
Section 1.05 Terminology...........................................................................24
ARTICLE II THE CREDITS ..........................................................................................24
Section 2.01 Commitments to Lend Syndicated Loans; Swing Loans.....................................24
Section 2.02 Method of Borrowing...................................................................26
Section 2.03 Notes.................................................................................28
Section 2.04 Maturity of Loans.....................................................................28
Section 2.05 Interest Rates........................................................................28
Section 2.06 Fees..................................................................................31
Section 2.07 Optional Termination or Reduction of Commitments......................................32
Section 2.08 Mandatory Reduction and Termination of Commitments...................................32
Section 2.09 Optional Prepayments..................................................................32
Section 2.10 Mandatory Prepayments.................................................................33
Section 2.11 General Provisions as to Payments.....................................................34
Section 2.12 Computation of Interest and Fees......................................................36
ARTICLE III CONDITIONS TO BORROWINGS.............................................................................36
Section 3.01 Conditions to First Borrowing.........................................................36
Section 3.02 Conditions to All Borrowings..........................................................38
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................................39
Section 4.01 Corporate Existence and Power.........................................................39
Section 4.02 Corporate and Governmental Authorization; No Contravention............................39
Section 4.03 Binding Effect........................................................................39
Section 4.04 Financial Information.................................................................40
Section 4.05 No Litigation.........................................................................40
Section 4.06 Compliance with ERISA.................................................................40
Section 4.07 Compliance with Laws; Payment of Taxes................................................40
Section 4.08 Subsidiaries..........................................................................41
Section 4.09 Investment Company Act................................................................41
Section 4.10 Public Utility Holding Company Act....................................................41
Section 4.11 Ownership of Property; Liens..........................................................41
Section 4.12 No Default............................................................................41
Section 4.13 Full Disclosure.......................................................................42
Section 4.14 Environmental Matters.................................................................42
Section 4.15 Capital Stock.........................................................................42
Section 4.16 Margin Stock..........................................................................43
Section 4.17 Insolvency............................................................................43
Section 4.18 Insurance.............................................................................43
ARTICLE V COVENANTS .............................................................................................43
Section 5.01 Information...........................................................................43
Section 5.02 Inspection of Property, Books and Records.............................................45
Section 5.03 Maintenance of Existence..............................................................45
Section 5.04 Dissolution...........................................................................45
Section 5.05 Consolidations, Mergers and Sales of Assets...........................................45
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Section 5.06 Use of Proceeds.......................................................................46
Section 5.07 Compliance with Laws; Payment of Taxes................................................47
Section 5.08 Insurance.............................................................................47
Section 5.09 Change in Fiscal Year.................................................................48
Section 5.10 Maintenance of Property...............................................................48
Section 5.11 Environmental Notices.................................................................48
Section 5.12 Environmental Matters.................................................................48
Section 5.13 Environmental Release.................................................................48
Section 5.14 Transactions with Affiliates..........................................................48
Section 5.15 Investments...........................................................................49
Section 5.16 Liens.................................................................................49
Section 5.17 Adjusted Interest Coverage Ratio......................................................50
Section 5.18 Restricted Payments...................................................................51
Section 5.19 Leverage Ratio........................................................................51
Section 5.20 Minimum Consolidated Tangible Net Worth...............................................51
Section 5.21 Significant Domestic Subsidiaries to Become Guarantors; Release of Guarantors to be
Sold..................................................................................51
Section 5.22 Pledge of Stock of Significant Direct Foreign Subsidiaries; Release with respect to
Certain Guarantors to be Sold.........................................................52
Section 5.23 Factoring Arrangements................................................................53
Section 5.24 Additional Debt; Debt of Receivables Subsidiary.......................................53
Section 5.25 Collateral............................................................................54
ARTICLE VI DEFAULTS .............................................................................................55
Section 6.01 Events of Default.....................................................................55
Section 6.02 Notice of Default.....................................................................58
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ARTICLE VII THE ADMINISTRATIVE AGENT.............................................................................58
Section 7.01 Appointment; Powers and Immunities....................................................58
Section 7.02 Reliance by Administrative Agent......................................................59
Section 7.03 Defaults..............................................................................59
Section 7.04 Rights of Administrative Agent as a Bank and its Affiliates...........................60
Section 7.05 Indemnification.......................................................................60
Section 7.06 CONSEQUENTIAL DAMAGES.................................................................60
Section 7.07 Payee of Note Treated as Owner........................................................61
Section 7.08 Nonreliance on Administrative Agent and Other Banks...................................61
Section 7.09 Failure to Act........................................................................61
Section 7.10 Resignation or Removal of Administrative Agent........................................61
ARTICLE VIII CHANGE IN CIRCUMSTANCES; COMPENSATION...............................................................62
Section 8.01 Basis for Determining Interest Rate Inadequate or Unfair..............................62
Section 8.02 Illegality............................................................................62
Section 8.03 Increased Cost and Reduced Return.....................................................63
Section 8.04 Base Rate Loans or Other Fixed Rate Loans Substituted for Affected Fixed Rate Loans...64
Section 8.05 Compensation..........................................................................65
Section 8.06 Failure to Pay in Foreign Currency....................................................65
Section 8.07 Judgment Currency.....................................................................66
ARTICLE IX MISCELLANEOUS ........................................................................................66
Section 9.01 Notices...............................................................................66
Section 9.02 No Waivers............................................................................66
Section 9.03 Expenses; Documentary Taxes...........................................................67
Section 9.04 Indemnification.......................................................................67
Section 9.05 Setoff; Sharing of Setoffs............................................................67
Section 9.06 Amendments and Waivers................................................................68
iv
Section 9.07 No Margin Stock Collateral............................................................69
Section 9.08 Successors and Assigns................................................................69
Section 9.09 Confidentiality.......................................................................71
Section 9.10 Representation by Banks...............................................................72
Section 9.11 Obligations Several...................................................................72
Section 9.12 New York Law..........................................................................72
Section 9.13 Severability..........................................................................72
Section 9.14 Interest..............................................................................72
Section 9.15 Interpretation........................................................................73
Section 9.16 Waiver of Jury Trial; Consent to Jurisdiction.........................................73
Section 9.17 Counterparts..........................................................................73
Section 9.18 Source of Funds-- ERISA...............................................................74
Section 9.19 Release of Receivables Program Assets.................................................74
Section 9.20 European Economic and Monetary Union..................................................74
EXHIBIT A-1 Form of Syndicated Dollar Loan Note
EXHIBIT A-2 Form of Syndicated Foreign Currency Loan Note
EXHIBIT A-3 Form of Swing Loan Note
EXHIBIT B-1 Form of Opinion of Weil, Gotshal & Xxxxxx
EXHIBIT B-2 Form of Opinion of Xxxxxx X. Xxxxx, Xx.
EXHIBIT C Form of Opinion of Special Counsel for the Administrative
Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Officer's Certificate
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EXHIBIT I Form of Mortgage
EXHIBIT J Form of Domestic Stock Pledge Agreement
EXHIBIT K Form of Subsidiary Guaranty
EXHIBIT L Form of Contribution Agreement
EXHIBIT M Form of Foreign Stock Pledge Agreement
EXHIBIT N Form of Intercreditor Agreement
EXHIBIT O Form of Security Agreement
EXHIBIT P Form of Patent Assignment
EXHIBIT Q Form of Hazardous Materials Indemnity Agreement
Schedule 4.08 Subsidiaries
Schedule 4.14 Environmental Matters
Schedule 5.15 Existing Investments
Schedule 5.25 Plants and Other Real Property
vi
CREDIT AGREEMENT
AGREEMENT dated as of May 26, 2000, among XXXXXXXX XXXXX,
INC., the BANKS listed on the signature pages hereof, WACHOVIA BANK, N.A., as
Administrative Agent, FIRST UNION NATIONAL BANK, as Syndication Agent and BANK
ONE, N.A., as Documentation Agent.
The parties hereto agree as follows:
ARTICLE I
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 or unless the context otherwise requires),
have the meanings set forth herein:
"Adjusted IBOR Rate" has the meaning set forth in Section
2.05(d).
"Adjusted Interest Coverage Ratio" means the ratio of (i)
Consolidated Total EBITDA minus Capital Expenditures, to (ii) Consolidated
Interest Expense.
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.05(c).
"Administrative Agent" means Wachovia Bank, N.A., a national
banking association organized under the laws of the United States of America, in
its capacity as administrative agent for the Banks hereunder, and its successors
and permitted assigns in such capacity.
"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, 20% 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.
"Agreement" means this Credit Agreement, together with all
amendments and supplements hereto.
"Amortization" means for any period of determination the sum
of all amortization charges of the Borrower and its Consolidated Subsidiaries
for such period as determined in accordance with GAAP, on a consolidated basis.
"Applicable Margin" has the meaning set forth in Section
2.05(a).
"Arranger" means Wachovia Securities, Inc.
"Arranger's Letter Agreement" means that certain letter
agreement, dated as of March 20, 2000, as amended and restated as of May 22,
2000, between the Borrower and the Arranger relating to the structure of the
Loans, and certain fees from time to time payable by the Borrower to the
Arranger and to the Administrative Agent, together with all amendments and
supplements thereto.
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with Section 9.08(c) in the form attached hereto as
Exhibit D.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as
having a Commitment, and its successors and assigns.
"Bank Obligations" means all indebtedness, liabilities and
obligations of the Borrower to the Administrative Agent and the Banks incurred
or arising from time to time under this Agreement and each of the Loan
Documents, including principal, interest, fees, costs and indemnification
amounts, and any extensions or renewals thereof in whole or in part.
"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, and (ii)
one-half of one percent above the Federal Funds Rate. For purposes of
determining the Base Rate or the Federal Funds Rate for any day, changes in the
Prime 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
VIII, as applicable.
"Borrower" means Xxxxxxxx Xxxxx, Inc., a Delaware corporation,
and its successors and permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans
made to the Borrower (i) at the same time by all of the Banks, in the case of
Syndicated Loans, or (ii) separately by Wachovia, in the case of Swing Loans,
and the term "Borrowing", when used in conjunction with a reference to a
specific type of Loan, means a Borrowing of such type, so that a "Syndicated
Borrowing" is a Borrowing consisting of Syndicated Loans, a "Fixed Rate
Borrowing" is a Borrowing consisting of Fixed Rate Loans and a "Swing Loan
Borrowing" is a Borrowing consisting of a Swing Loan.
"Capital Expenditures" means for any period the sum of all
capital expenditures incurred during such period by the Borrower and its
Consolidated Subsidiaries, as determined in accordance with GAAP; provided that
Capital Expenditures shall not include capitalized interest or any amortized
deferred financing costs which are included in the computation of Consolidated
Interest Expense.
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"Capital Stock" means any nonredeemable capital stock of the
Borrower or any Consolidated Subsidiary (to the extent issued to a Person other
than the Borrower), whether common or preferred.
"Cash Management Agreements" means, individually and
collectively, as the context shall require. any agreements between the Borrower,
on the one hand, and any Bank, on the other hand, whether now or hereafter in
effect, pursuant to which such Bank provides Cash Management Services, and all
amendments thereto, supplements thereof, and replacements therefor.
"Cash Management Services" shall mean cash management services
for operating, collection, payroll and trust accounts of the Borrower and/or its
Subsidiaries provided by a Cash Management Services Provider and/or its
Affiliates, including, without limitation, automatic clearing house services,
control disbursement services, electronic funds transfer services, information
reporting services, lockbox services, stop payment services, and wire transfer
services.
"Cash Management Services Obligations" means any and all
obligations of the Borrower and/or any of its Subsidiaries to any Cash
Management Services Provider and/or any of its Affiliates under any of the Cash
Management Agreements or otherwise relating to any of the Cash Management
Services.
"Cash Management Services Provider" means any Bank or
Affiliate thereof which provides Cash Management Services to the Borrower and/or
any of its Affiliates under any of the Cash Management Agreements or otherwise
relating to any of the Cash Management Services, in its capacity as the provider
of such services.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 X.X.X.xx. 9601 et. seq. and its implementing
regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section
8.02.
"Closing Certificate" has the meaning set forth in Section
3.01(e).
"Closing Date" means May 26, 2000.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code.
"Collateral" means (i) the Foreign Pledged Stock, (ii) the
Domestic Pledged Stock and (if applicable, the Receivables Subsidiary Pledged
Stock), (iii) all of the personal property described in the Security Agreement
and the Patent Assignment; provided, however, that from and after the release of
the Receivables Program Assets pursuant to Section 9.19, all references to
Collateral pursuant to the Security Agreement shall exclude the Receivables
Program Assets and the Purchase Money Note, but shall include the Receivables
3
Subsidiary Pledged Stock, and (iv) all of the Plants and Designated Other Real
Property.
"Collateral Agent" means Wachovia, in its capacity as
collateral agent for the Secured Parties pursuant to the Intercreditor
Agreement, or any successor collateral agent appointed or designated pursuant
thereto.
"Commitment" means, with respect to each Bank, (i) the amount
set forth opposite the name of such Bank on the signature pages hereof, and (ii)
as to any Bank which enters into any Assignment and Acceptance (whether as
transferor Bank or as Assignee thereunder), the amount of such Bank's 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 2.08 and 2.09.
"Compliance Certificate" has the meaning set forth in Section
5.01(c).
"Consolidated Interest Expense" for any period means (i)
interest, whether expensed or capitalized, in respect of Consolidated Total Debt
of the Borrower or any of its Consolidated Subsidiaries outstanding during such
period and (ii) all discount, fees and program expenses payable under a
Receivables Securitization Program.
"Consolidated Net Income" means, for any period, the Net
Income of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis, but excluding (i) extraordinary items and (ii) any equity
interests of the Borrower or any Subsidiary in the unremitted earnings of any
Person that is not a Subsidiary.
"Consolidated Operating Income" means, for any period, the
Operating Income of the Borrower and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which, in accordance with GAAP, would 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 October 3, 1999;
(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, tradenames, copyrights, patents and
technologies, and unamortized debt discount and expense;
(C) To the extent not included in (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;
4
(D) Loans or advances to stockholders, directors,
officers or employees; and
(E) To the extent not included in (B) of this
definition, deferred expenses.
"Consolidated Total Assets" means, at any time, the total
assets of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis, as set forth or reflected on the most recent consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries, prepared in
accordance with GAAP.
"Consolidated Total Debt" means at any date the Debt of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis
as of such date.
"Consolidated Total EBITDA" means, as to the Borrower and its
Consolidated Subsidiaries calculated for each Fiscal Quarter then ending, and
the immediately preceding 3 Fiscal Quarters (determined on a consolidated basis
and in accordance with GAAP), the sum of (a) Consolidated Net Income, plus (b)
Consolidated Interest Expense (to the extent subtracted from Consolidated Net
Income), plus (c) Amortization (to the extent subtracted from Consolidated Net
Income), plus (d) Depreciation (to the extent subtracted from Consolidated Net
Income), plus (e) consolidated tax expenses for such period (to the extent
subtracted from Consolidated Net Income), minus or plus (f) to the extent
included in Consolidated Net Income, any non-operating gains and losses, up to
but not in excess of $2,500,000, plus (g) non cash charges up to but not in
excess of $5,000,000.
"Contributed Receivables" means Receivables which are
contributed to the Receivables Subsidiary as equity Investments therein pursuant
to a Receivables Securitization Program.
"Contribution Agreement" means the Contribution Agreement of
even date herewith in substantially the form of Exhibit L to be executed by the
Borrower and each of the Guarantors.
"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.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, including Factor
Advances, (ii) all 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 arising in the ordinary course of business, (iv) all obligations of such
Person as lessee under capital leases, (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 to be paid
under a letter of credit or similar instrument, but excluding letters of credit
or similar instruments having a stated maturity of less than one year from the
date of issuance which are issued in support of trade payables arising from the
import of goods, (viii) all Hedge Obligations, (ix) all Debt of others secured
5
by a Lien on any asset of such Person, whether or not such Debt is assumed by
such Person, (x) all Debt of others Guaranteed by such Person, and (xi) all
principal amounts outstanding and owed to parties other than the Borrower or any
Subsidiary under the items described in clause (a) of the definition of
Receivables Program Obligations.
"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, on any day,
the sum of 2% plus the then highest interest rate (including the Applicable
Margin) which may be applicable to any Loans hereunder (irrespective of whether
any such type of Loans are actually outstanding hereunder).
"Depreciation" means for any period the sum of all
depreciation expenses of the Borrower and its Consolidated Subsidiaries for such
period, as determined in accordance with GAAP.
"Designated Other Real Property" means Other Real Property as
to which the Administrative Agent has required, either by so designating on
Schedule 5.25 or as the Collateral Agent may after the Closing Date so designate
by written notice to the Borrower, that a Mortgage be executed and delivered and
Real Property Documentation obtained, including as to each such Other Real
Property the land on which it is located and the buildings, fixtures and other
improvements located thereon.
"Direct Foreign Subsidiary" means any Foreign Subsidiary owned
directly by the Borrower and/or a Domestic Subsidiary
"Dollar Equivalent" means the Dollar equivalent of the amount
of a Foreign Currency Loan, determined by the Administrative Agent on the basis
of its spot rate for the purchase of the appropriate Foreign Currency with
Dollars.
"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 Georgia are authorized by law
to close.
"Domestic Loans" means Base Rate Loans or Swing Loans or
either or both of them, as the context shall require.
"Domestic Pledged Stock" means all capital stock of the
Domestic Subsidiaries pledged pursuant to the Domestic Stock Pledge Agreement.
"Domestic Stock Pledge Agreement" means the Stock Pledge
Agreement, substantially in the form of Exhibit J, and to be executed by the
Borrower and each Guarantor owning Domestic Subsidiaries, agreeing to pledge to
the Collateral Agent pursuant thereto, for the equal and ratable benefit of the
Secured Parties, all of the outstanding capital stock of all Domestic
6
Subsidiaries, to secure the payment of all of the Secured Obligations, as any of
the foregoing may be amended or supplemented from time to time.
"Domestic Subsidiary" means any Subsidiary which is organized
under the laws of the United States of America or any state, territory or
possession thereof or the District of Columbia.
"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, registrations or governmental approvals 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 arising from
and in any way associated with any Environmental Requirements.
"Environmental Notices" means written 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 or demands 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,
any Subsidiary or the 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.
"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.
7
"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.
"Excluded Receivables Assets" means: (i) all inventory of the
Borrower or any of its Subsidiaries, other than returned or repossessed goods,
if any, relating to the sale that gave rise to any Purchased Receivables or
Contributed Receivables ("Specified Returned Goods)"; (ii) Receivables which are
not Purchased Receivables or Contributed Receivables; and (iii) any Receivables
or other proceeds of inventory of the Borrower and the Subsidiaries created or
arising (x) after a the commencement of a case under 11 U.S.C.A, ss.101 et. seq.
(as amended from time to time) in which the Borrower or such Subsidiary is the
debtor (other than proceeds of Specified Returned Goods), (y) after termination
of purchases under the Receivables Securitization Program or (z) from the sale
or other disposition of any of the inventory of the Borrower and the
Subsidiaries (other than Specified Returned Goods) by the Collateral Agent, as a
secured party under the applicable Uniform Commercial Code.
"Factor Advances" means all amounts advanced to the Borrower
or a Subsidiary in respect of an Identified Account prior to its stated maturity
by a factor in connection with a Permitted Factoring Arrangement.
"Factored Accounts" has the meaning set forth in Section 5.23.
"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 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 by the Administrative Agent.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Fixed Rate Loans" means Euro-Dollar Loans and Foreign
Currency Loans or either or both of them, as the context shall require.
"Foreign Currencies" means, individually and collectively, as
the context shall require, each of the following, if offered and subject to
availability, and subject to the provisions of Section 9.20: (i) euros (which,
during the transitional period, may be in an amount determined by reference to a
8
national currency unit of a participating member state), British pounds
sterling, Canadian dollars, Dutch guilders, French francs, German deutche marks,
Japanese yen and Swiss francs; and (ii) at the option of the Banks, any other
currency which is freely transferable and convertible into Dollars; provided,
however, that no such other currency under this clause (ii) shall be included as
a Foreign Currency hereunder, or included in a Notice of Borrowing, unless (x) a
Borrower has first submitted a request to the Administrative Agent and the Banks
that it be so included, and (y) the Administrative Agent and the Banks, in their
sole discretion, have agreed to such request.
"Foreign Currency Business Day" shall mean any Domestic
Business Day, excluding one on which trading is not carried on by and between
banks in deposits of the applicable Foreign Currency in the applicable interbank
market for such Foreign Currency.
"Foreign Currency Loan" means a Loan to be made as a Foreign
Currency Loan pursuant to the applicable Notice of Borrowing.
"Foreign Pledged Stock" means all capital stock of the
Significant Direct Foreign Subsidiaries pledged pursuant to the Foreign Stock
Pledge Agreement.
"Foreign Stock Pledge Agreement" means, collectively, (i) the
Foreign Stock Pledge Agreement, substantially in the form of Exhibit M, and (ii)
and if requested by the Administrative Agent, any pledge or other agreement
which may required pursuant to applicable law in the jurisdiction in which a
Significant Direct Foreign Subsidiary is located, in each case to be executed
and delivered by the Borrower and each Domestic Subsidiary which owns any
Significant Direct Foreign Subsidiaries, agreeing to pledge to the Collateral
Agent pursuant thereto, for the ratable benefit of the Secured Parties, 65% of
the capital stock of all Significant Direct Foreign Subsidiaries, to secure the
payment of all of the Secured Obligations, as any of the foregoing may be
amended or supplemented from time to time.
"Foreign Subsidiary" means any Subsidiary which is not a
Domestic Subsidiary.
"GAAP" means generally accepted accounting principles 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" 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 term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
9
"Guarantors" means any Significant Domestic Subsidiary which
is a Significant Domestic Subsidiary on the Closing Date and any Person which
becomes a Significant Domestic Subsidiary and a Guarantor pursuant to Section
5.21; in each case subject to the provisions of the last sentence of Section
5.21.
"Guaranty" means the Guaranty Agreement of even date herewith
in substantially the form of Exhibit "K" to be executed by the Guarantors,
unconditionally and jointly and severally Guaranteeing payment of the Bank
Obligations.
"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 or (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.
"Hazardous Materials Indemnity Agreement" means, as to each
Plant or Designated Other Real Property, an agreement substantially in the form
of Exhibit Q, modified as appropriate to the applicable law of the state in
which such Plant or Designated Other Real Property is located, pursuant to which
the Collateral Agent is indemnified with respect to hazardous materials and
other environmental risks pertaining to such Plant or Designated Other Real
Property.
"Hedge Obligations" means all obligations of such Person with
respect to interest rate protection agreements, foreign currency exchange
agreements or other hedging arrangements (valued at 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 hedging
agreement, if any, and in any case net of any benefits of such Person).
"IBOR" has the meaning set forth in Section 2.05(d).
"Identified Accounts" has the meaning set forth in Section
5.23.
"Intercompany Note" means any note of a Subsidiary to the
Borrower or any Domestic Subsidiary which evidences an intercompany loan or
advance (which may be a master note evidencing all such loans and advances) of
the Borrower or any Domestic Subsidiary to such Subsidiary, in form and
substance reasonably satisfactory to the Administrative Agent and the Collateral
Agent.
"Intercreditor Agreement" means the Intercreditor Agreement
dated as of even date herewith, substantially in the form of Exhibit N, among
the Collateral Agent, the Banks, The Prudential Insurance Company of America,
The Variable Annuity Life Insurance Company, American General Annuity Insurance
Company, Massachusetts Mutual Life Insurance Company and C. M. Life Insurance
10
Company, together with the Acknowledgment and Agreement of the Borrower and the
Guarantors at the end thereof, as it may be amended or supplemented from time to
time.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing and Foreign Currency Borrowing, subject to paragraph (c) below, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the first, second, third or sixth month thereafter, as the
Borrower may elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day or Foreign Currency Business
Day, as the case may be, shall be extended to the next succeeding
Euro-Dollar Business Day or Foreign Currency Business Day, as the case
may be, unless such Euro-Dollar Business Day or Foreign Currency
Business Day, as the case may be, falls in another calendar month, in
which case such Interest Period shall, subject to paragraph (c) below
end on the next preceding Euro-Dollar Business Day or Foreign Currency
Business Day, as the case may be;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day or Foreign Currency Business Day, as the case may be, of a
calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall
end on the last Euro-Dollar Business Day or Foreign Currency Business
Day, as the case may be, 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.
(2) With respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending 30 days thereafter; provided that:
(d) any Interest Period which would otherwise end on a day
which is not a Domestic Business Day shall be extended to the next
succeeding Domestic Business Day; and
(e) no Interest Period which begins before the Termination
Date and would otherwise end after the Termination Date may be
selected.
"Investment" means any investment in any Person, whether by
means of purchase or acquisition of obligations or securities of such Person,
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.
"Lending Office" means, as to each Bank, 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 Bank
may hereafter designate as its Lending Office by notice to the Borrower and the
Administrative Agent. Each Bank may designate a Lending Office for Syndicated
Dollar Loans and a different Lending Office for Foreign Currency Loans, and the
term "Lending Office" shall in such case mean either such Lending Office, as the
context shall require.
11
"Leverage Ratio" means the ratio of Consolidated Total Debt to
Consolidated Total EBITDA.
"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 or encumbrance, or 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 (other
than an agreement with any creditor that if a Lien is granted to another Person,
an equal and ratable Lien will be granted to such creditor). For the purposes of
this Agreement, the Borrower or 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, Euro-Dollar Loan, Swing Loan,
Domestic Loan, Syndicated Loan, Foreign Currency Loan, and "Loans" means Base
Rate Loans, Euro-Dollar Loans, Swing Loans, Domestic Loans, Syndicated Loans or
Foreign Currency Loans, or any or all of them, as the context shall require.
"Loan Documents" means this Agreement, the Notes, the
Guaranty, the Contribution Agreement, the Security Documents, the Hazardous
Materials Indemnity Agreements, the Acknowledgment and Agreement of the Borrower
and the Guarantors at the end of the Intercreditor Agreement, any other material
document or instrument executed by the Borrower or any Subsidiary evidencing,
relating to or securing the Loans, and any other material document or instrument
executed and delivered from time to time in connection with this Agreement, the
Notes, the Guaranty, the Contribution Agreement, the Security Documents or the
Loans, as such documents and instruments may be amended or supplemented from
time to time.
"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 in any litigation, arbitration, or governmental investigation or
proceeding), any such event, act, condition or occurrence resulting in 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 and its Consolidated Subsidiaries taken as a whole, (b) the rights and
remedies of the Administrative Agent or the Banks under the Loan Documents, or
the ability of the Borrower or any of the Subsidiaries to perform its
obligations under the Loan Documents to which it is a party, as applicable, or
(c) the legality, validity or enforceability of any Loan Document.
"Maximum Available Proceeds" means, with respect to a
Receivables Securitization Program (i) as of the date such Receivables Program
becomes effective, the amount of net cash proceeds which would be payable to the
Borrower or its Subsidiaries pursuant to such Receivables Securitization Program
if the maximum amount of Purchased Receivables which could be sold by it under
12
such Receivables Securitization Program, taking into account the overall
purchase commitment level applicable thereunder, were sold pursuant thereto,
plus (ii) as of any date the overall purchase commitment level under such
Receivables Securitization Program is increased, the amount of additional net
cash proceeds which would be payable to the Borrower or its Subsidiaries
pursuant to such Receivables Securitization Program if the maximum amount of
Purchased Receivables which could be sold by it under such Receivables
Securitization Program, taking into account such increased overall purchase
commitment level applicable thereunder, were sold pursuant thereto.
"Mortgage" means any one, or more, or all, as the context
shall require, of a mortgage, deed of trust, leasehold deed of trust, deed to
secure debt, leasehold deed to secure debt, as applicable in the relevant state,
conveying a first priority Lien on the Plant or Plants and Designated Other Real
Property described therein owned by the Borrower or such Guarantor (or its
leasehold interests therein) to the Collateral Agent, for the equal and ratable
benefit of the Secured Parties, subject only to the Permitted Encumbrances
applicable thereto, as security for payment of the Secured Obligations, as any
of the foregoing may be amended or supplemented from time to time, subject, as
to any leasehold property, to obtaining any necessary landlord consent, as
contemplated in Section 5.25. Attached as Exhibit I is a form of Mortgage which
is a Deed of Trust and Uniform Commercial Code Security Agreement and Assignment
of Leases, Rents and Profits for use for a fee simple interest in the State of
North Carolina, and any Mortgage of a leasehold interest and/or for a different
state shall be substantially the same as Exhibit I as to representations and
warranties, covenant and events of default, but modified as appropriate to
reflect a leasehold interest and/or the applicable property law of such
different state, as applicable.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"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 Proceeds of Capital Stock" means any cash proceeds
received by the Borrower or a Consolidated Subsidiary in respect of the issuance
of Capital Stock, after deducting therefrom all reasonable and customary costs
and expenses incurred by the Borrower or such Consolidated Subsidiary directly
in connection with the issuance of such Capital Stock.
"Newly Designated Subsidiary" has the meaning set forth in
Section 5.21(a).
"Non-Factored Accounts" has the meaning set forth in Section
5.23.
"Non-Significant Foreign Subsidiary" means any Subsidiary
which does not satisfy the conditions set forth in clause (i) and (ii) of the
definition of Significant Domestic Subsidiary.
"Notes" means the Syndicated Dollar Loan Notes, the Swing Loan
Note, the Syndicated Foreign Currency Loan Notes, or any or all of them, as the
context shall require.
13
"Note Purchase Agreements" means, individually and
collectively, as the context shall require, the Note Purchase Agreement, each
dated as of December 18, 1998, executed by the Borrower with (i) The Prudential
Insurance Company of America, (ii) The Variable Annuity Life Insurance Company
and American General Annuity Insurance Company, (iii) Massachusetts Mutual Life
Insurance Company, and (iv) C.M. Life Insurance Company, as any of the foregoing
may be amended or supplemented from time to time.
"Notice of Borrowing" has the meaning set forth in Section
2.02(a).
"Officer's Certificate" has the meaning set forth in Section
3.01(f).
"Operating Income" means, as applied to any Person for any
period, the operating income of such Person for such period, as determined in
accordance with GAAP.
"Other Real Property" means any owned real property having a
cost or assessed value for ad valorem tax purposes of $300,000 or more, and any
leased real property with annual aggregate base rental payments (meaning minimum
periodic contractual rent, excluding reimbursement recovery of common area
maintenance or other common property operating expenses and excluding percentage
rent) of $150,000 or more, other than a Plant, of the Borrower or any Guarantor
located in the United States of America and described in Schedule 5.25, as it
may be supplemented from time to time pursuant to Section 5.25.
"Participant" has the meaning set forth in Section 9.08(b).
"Patent Assignment" means the Patent Collateral Assignment,
substantially in the form of Exhibit P, to be executed and delivered by the
Borrower and each applicable Guarantor, granting to the Collateral Agent, for
the equal and ratable benefit of the Secured Parties, a first priority
collateral assignment of the patents described therein to secure the Secured
Obligations, together with all amendments and supplements thereto.
"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, (i) as to the Collateral
described in the Security Agreement, the encumbrances expressly permitted by the
Security Agreement, and (ii) as to each Plant or Designated Other Real Property,
the encumbrances expressly permitted by the Mortgage with respect to such Plant
or Designated Other Real Property.
"Permitted Factoring Arrangements" has the meaning set forth
in Section 5.23.
"Person" means an individual, a corporation, a limited
liability corporation, 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.
14
"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 5 plan years made contributions.
"Plants" means any one, or more, or all, as the context shall
require, of the manufacturing facilities of the Borrower and the Guarantors
located in the United States of America and described as Plants in Schedule
5.25, as it may be supplemented from time to time pursuant to Section 5.25,
including as to each such Plant the land on which it is located and the
buildings, fixtures and other improvements located thereon.
"Pledged Note" means any Intercompany Note which is pledged to
the Collateral Agent pursuant to the Security Agreement, as security for all of
the Secured Obligations.
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings. The
Prime Rate is but one of several interest rate bases used by Wachovia. Wachovia
lends at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Borrower or any Subsidiary, wherever located.
"Purchase Money Note" means a promissory note evidencing the
obligation of the Receivables Subsidiary to pay to the Borrower or any of its
Subsidiaries the purchase price for Purchased Receivables in connection with the
Receivables Securitization Program, which note shall be repaid from cash
available to the Receivables Subsidiary, other than cash required to be held as
reserves pursuant to Receivables Program Documents, amounts paid in respect of
interest, principal and other amounts owing under Receivables Program Documents
and amounts paid in connection with the purchase of additional Receivables.
"Purchased Receivables" means Receivables which are actually
purchased pursuant to the Receivables Program Documents, for a purchase price
determined pursuant thereto.
"Real Property Documentation" shall mean the instruments,
documents and agreements executed and/or delivered by Borrower to the
Administrative Agent (if applicable) pursuant to Section 5.25 in connection with
each Mortgage in order to convey to the Administrative Agent (or a trustee for
the benefit of the Administrative Agent, as applicable under the applicable law)
for the equal and ratable benefit of the Banks and Senior Note Holders, a first
priority security interest in, lien on and security title (subject to Permitted
Encumbrances) to the right, title and interest of the Borrower and each
Guarantor in the Plant or Plants or Designated Other Real Property described
therein, and other rights ancillary thereto, all in form and substance
reasonably satisfactory to the Administrative Agent, after consultation with the
15
Borrower. The Real Property Documentation shall include, without limitation, the
following as to each Plant or Designated Other Real Property and the land on
which it is located:
(i) an owner's/lessee's affidavit for each parcel or
tract of such Plant or Designated Other Real
Property;
(ii) mortgagee title insurance binders and policies for
each tract or parcel of such Plant or Designated
Other Real Property;
(iii) such consents, acknowledgments, intercreditor or
attornment and subordination agreements as the
Administrative Agent may require from any Third
Parties with respect to any portion of such Plant or
Designated Other Real Property;
(iv) a current survey of each parcel or tract of such
Plant or Designated Other Real Property;
(v) a certificate as to the insurance required by the
related Mortgage;
(vi) a report of a licensed engineer detailing an
environmental inspection of such Plant or Designated
Other Real Property (which shall be a "Phase 1"
report only unless either a "Phase 2" report is
recommended in such Phase 1 report or the
Administrative Agent determines in its reasonable
judgment, based on such Phase 1 report, that a Phase
2 report should be obtained);
(vii) a Hazardous Materials Indemnity Agreement for such
Plant or Designated Other Real Property;
(viii) an appraisal of such Plant or Designated Other Real
Property, prepared by an appraiser satisfactory to
the Administrative Agent and engaged by and on behalf
of the Administrative Agent and the Banks; and
(ix) any revenue ruling or similar assurance from the
department of revenue or taxation requested by the
Administrative Agent with respect to any stamp,
intangible or other taxes payable in connection with
the filing for record of any of the Mortgages.
"Receivables" means all rights of the Borrower or its
Subsidiaries to payment, whether constituting an account, chattel paper,
instrument, general intangible or otherwise, arising from the sale of goods or
services (including rights under xxxx and hold arrangements) by the Borrower or
its Subsidiary (and including the right to payment of any interest or finance
charges and other obligations with respect thereto).
"Receivables Intercreditor Agreement" has the meaning set
forth in Section 9.19.
"Receivables Pledge Agreement" means a Stock Pledge Agreement,
in substantially the form of Exhibit P, to be executed by the Borrower in favor
of the Collateral Agent, for the ratable benefit of the Secured Parties,
16
pledging all of the Receivables Subsidiary Pledged Stock to secure the payment
of all of the Secured Obligations, pursuant to the provisions of Section 9.19.
"Receivables Program Assets" means (a) all Purchased
Receivables and Contributed Receivables transferred by the Borrower or its
Subsidiaries (including the Receivables Subsidiary) pursuant to the Receivables
Program Documents; provided, however, that the term "Receivables Program Assets"
shall not include any Excluded Receivables Assets, (b) all Receivables Program
Related Assets, and (c) all collections (including recoveries) and other
proceeds of the assets described in the foregoing clauses (a) and (b).
"Receivables Program Documents" means (x) a receivables
purchase agreement, pooling and servicing agreement, credit agreement,
agreements to acquire undivided interests or other agreement to transfer, or
create a security interest in, Receivables Program Assets, in each case as
amended, modified, supplemented or restated and in effect from time to time
entered into by the Borrower and/or its Subsidiaries (including the Receivables
Subsidiary), and (y) each other instrument, agreement and other document entered
into by the Borrower or its Subsidiaries (including the Receivables Subsidiary)
relating to the transactions contemplated by the items referred to in clause (x)
above, in each case as amended, modified, supplemented or restated and in effect
from time to time.
"Receivables Program Obligations" means (a) notes, trust
certificates, undivided interests, partnership interests or other interests
representing the right to be paid a specified principal amount from the
Receivables Program Assets, and (b) related obligations of the Borrower and/or
its Subsidiaries (including, without limitation, rights in respect of interest
or yield, breach of warranty claims and expense reimbursement and indemnity
provisions) and other Standard Securitization Undertakings.
"Receivables Program Related Assets" means, with respect to
Purchased Receivables and Contributed Receivables (but not Excluded
Receivables), (i) rights of the seller or contributor thereof under the
documentation governing or relating to such Receivables, including all contracts
pursuant to which any account party or other party is obligated to make payment
on any such Receivable, and all related purchase orders, invoices and other
agreements, documents, books, records and other media for the storage of
information (including tapes, disks, punch cards, computer programs and
databases and related property), (ii) all of the right, title and interest of
the seller or contributor thereof in the goods, if any, relating to the sale
that gave rise to such Receivable, all other security interests or liens and
property subject thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the contract described in clause (i) or
otherwise, and all letters of credit, guarantees and other agreements or
arrangements of whatever character from time to time supporting or securing
payment of such Receivable, whether pursuant to the contract described in clause
(i) or otherwise and (iii) all proceeds of all of the foregoing, including all
funds received by any Person in payment of any amounts owed (including invoice
prices, finance charges, interest and all other charges, if any) in respect
thereof or otherwise applied to repay or discharge any such Receivable
(including insurance payments applied in the ordinary course of business to
amounts owed in respect of such Receivable and net proceeds of any sale or other
disposition of repossessed goods that were the subject of any such Receivable)
or other collateral or property of the account party or other party directly or
17
indirectly liable for payment of such Receivables, and any lockboxes or accounts
in which such proceeds are deposited, (iv) all spread accounts and other similar
accounts (and any amount on deposit therein) established in connection with the
Receivables Securitization Program and (v) any warranty, indemnity, dilution and
other intercompany claim arising out of Receivables Program Documents.
"Receivables Securitization Program" means any transaction or
series of transactions that may be entered into by the Borrower and its
Subsidiaries pursuant to which the Borrower and/or its Subsidiaries may sell,
convey or otherwise transfer to the Receivables Subsidiary and (in the case of a
transfer by the Receivables Subsidiary) any other Person, or may grant a
security interest in, any Receivables Program Assets (whether now existing or
arising in the future); provided that:
(a) no portion of the indebtedness or any other obligations
(contingent or otherwise) of a Receivables Subsidiary or Special Purpose Vehicle
(i) is guaranteed by the Borrower or its Subsidiaries (other than the
Receivables Subsidiary and excluding guarantees of obligations pursuant to
Standard Securitization Undertakings), (ii) is recourse to or obligates the
Borrower or its Subsidiaries (other than the Receivables Subsidiary) for payment
other than pursuant to Standard Securitization Undertakings or (iii) subjects
any property or asset of the Borrower or its Subsidiaries (other than the
Receivables Subsidiary), directly or indirectly, contingently or otherwise, to
the satisfaction of obligations incurred in such transactions, other than
pursuant to Standard Securitization Undertakings,
(b) the Borrower and its Subsidiaries (other than the
Receivables Subsidiary) do not have any obligation to maintain or preserve the
financial condition of a Receivables Subsidiary or a Special Purpose Vehicle or
cause such entity to achieve certain levels of operating results; and
(c) the net purchase price payable to the Borrower or
Subsidiary with respect to Purchased Receivables thereunder (net of all
reserves, discounts, fees and charges) is not less than 75% of the face amount
of the Purchased Receivables.
"Receivables Subsidiary" means a special purpose corporation,
limited liability company or other entity that is a wholly owned subsidiary of
the Borrower, created for the sole purpose of, and whose only business shall be,
acquisition of the Receivables Program Assets pursuant to the Receivables
Securitization Program and those activities incidental to the Receivables
Securitization Program.
"Receivables Subsidiary Pledged Stock" means the capital stock
in the Receivables Subsidiary owned by the Borrower and described in and pledged
pursuant to the Receivables Pledge Agreement, when it is executed and delivered
pursuant to Section 9.19.
"Recording Expenses" has the meaning set forth in Section
5.25.
"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.
18
"Refunding Loan" means a new Syndicated Loan made on the day
on which an outstanding Syndicated Loan is maturing or a Base Rate Borrowing is
being converted to a Fixed Rate Borrowing, if and to the extent that the
proceeds thereof are used entirely for the purpose of paying such maturing Loan
or Loan being converted, excluding 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 D" means Regulation D 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 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.
"Related Fund" means, with respect to any Bank that is a fund
that invests in lender loans, any other fund that invests in lender loans and is
advised or managed by the same investment advisor as such Bank.
"Reported Net Income" means, for any period, the Net Income of
the Borrower and its Consolidated Subsidiaries determined on a consolidated
basis.
"Required Banks" means at any time Banks having at least 66
2/3% of the aggregate amount of the Commitments or, if the Commitments are no
longer in effect, Banks holding at least 66 2/3% of the aggregate outstanding
principal amount of the sum of the Syndicated Loans.
"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 (other than
solely in shares of its Capital Stock) on account of the purchase, redemption,
retirement or acquisition of (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, warrant or other right to acquire shares of
the Borrower's Capital Stock; provided, however, that Restricted Payment shall
not include the issuance of shares in exchange for "underwater" stock options,
issuance of restricted stock or payments related to the Stockholders' Agreement
with the Borrower dated as of April 30, 1991, as amended, relating to the
acquisition by the Borrower of certain of Xxxxxxx X. Xxxxx' shares of Capital
Stock; so long as (i) the Borrower continuously maintains key man life insurance
on the life of Xxxxxxx X. Xxxxx in an amount not less than $2,900,000, (ii) the
19
proceeds of such insurance are applied toward such payment and (iii) the
aggregate amount of such payment (including amounts paid with such insurance)
does not exceed $5,000,000.
"Reuters Screen" shall mean, when used in connection with any
designated page and the London Interbank Offered Rate, the display page so
designated on the Reuter Monitor Money Rates Service (or such other page as may
replace that page on that service for the purpose of displaying rates comparable
to the London Interbank Offered Rate).
"Secured Obligations" means the Bank Obligations, the Senior
Note Obligations, the Cash Management Services Obligations, subject to the
limitations contained in the Intercreditor Agreement, all Hedge Obligations with
any Bank or Affiliate thereof, subject to the limitations contained in the
Intercreditor Agreement, and other Secured Obligations described in the
Intercreditor Agreement (pertaining to certain costs and expenses).
"Secured Parties" means the Banks and the Senior Note Holders,
together with Wachovia Bank, N.A., with respect to the Cash Management Services
Obligations.
"Security Agreement" means the Security Agreement,
substantially in the form of Exhibit O, to be executed and delivered by the
Borrower and each Guarantor, granting to the Collateral Agent, for the equal and
ratable benefit of the Secured Parties, a first priority security interest in
the personal property described therein, subject only to Permitted Encumbrances,
to secure the Secured Obligations, together with all amendments and supplements
thereto.
"Security Documents" means the Foreign Stock Pledge Agreement,
the Domestic Stock Pledge Agreement, the Security Agreement, the Patent
Assignment and the Mortgages.
"Senior Note Holders" means, collectively, the holders from
time to time of the Senior Notes.
"Senior Notes" means, collectively, Senior Notes issued
pursuant to the Note Purchase Agreements to the Senior Note Holders, in the
following original amounts: (i) the $3,000,000 7.06% Senior Note and $97,000,000
7.06% Senior Note executed by the Borrower in favor of The Prudential Insurance
Company of America; (ii) the $10,000,000 7.06% Senior Note executed by the
Borrower in favor of The Variable Annuity Life Insurance Company; (iii) the
$15,000,000 7.06% Senior Note executed by the Borrower in favor of American
General Annuity Insurance Company; (iv) the $8,500,000 7.06% Senior Note, the
$5,600,000 7.06% Senior Note and the $4,900,000 7.06% Senior Note executed by
the Borrower in favor of Massachusetts Mutual Life Insurance Company; and (v)
the $1,000,000 7.06% Senior Note executed by the Company in favor of C. M. Life
Insurance Company, all such Senior Notes being dated as of December 18, 1998,
together with any amendments, supplements, renewals, replacements or
substitutions of any of such Senior Notes.
"Senior Note Obligations" means the Senior Notes and all of
the obligations of the Borrower to the Senior Note Holders pursuant to the Note
Purchase Agreement and each of the Security Documents (other than this
Agreement, the Notes, the Guaranty and the Contribution Agreement), including,
without limitation, all interest, make whole amounts, premium, expenses and
indemnification amounts.
20
"Significant Direct Foreign Subsidiary" means any Direct
Foreign Subsidiary which is either a Significant Foreign Subsidiary or is
designated as a Significant Direct Foreign Subsidiary on Schedule 4.08 (it being
understood and agreed that the Borrower may elect to send to the Administrative
Agent and the Banks from time to time a supplement to Schedule 4.08, designating
any Direct Foreign Subsidiary as a Significant Direct Foreign Subsidiary,
whether or not it satisfies the criteria in clauses (x) or (y) of the definition
of Significant Domestic Subsidiary).
"Significant Domestic Subsidiary" means any Subsidiary which:
(i) is a Domestic Subsidiary; and (ii) either (1) is designated as a Significant
Domestic Subsidiary on Schedule 4.08 (it being understood and agreed that the
Borrower may elect to send to the Administrative Agent and the Banks from time
to time a supplement to Schedule 4.08, designating any Domestic Subsidiary as a
Significant Domestic Subsidiary, whether or not it satisfies the criteria in
clauses (x) or (y) below) or (2) either (x) has assets which constitute more
than 5% of Consolidated Total Assets at the end of the most recent Fiscal
Quarter, or (y) contributed more than 5% of Consolidated Operating Income during
the most recent Fiscal Quarter and the 3 Fiscal Quarters immediately preceding
such Fiscal Quarter (or, with respect to any Subsidiary which existed during the
entire 4 Fiscal Quarter period but was acquired by the Borrower during such
period, which would have contributed more than 5% of Consolidated Operating
Income during such period had it been a Subsidiary for the entire period).
"Significant Foreign Subsidiary" means any Subsidiary which
satisfies the conditions set forth in clause (ii), but not clause (i), of the
definition of Significant Domestic Subsidiary.
"Special Purpose Vehicle" means a trust, partnership or other
special purpose Person established by the Borrower to implement the Receivables
Securitization Program.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Borrower or its
Subsidiaries (other than the Receivables Subsidiary) that are reasonably
customary in accounts receivable securitization transactions, as reasonably
determined in good faith by the Administrative Agent.
"Stockholders' Equity" means, at any time, the shareholders'
equity of the Borrower and its Consolidated Subsidiaries, as set forth or
reflected on the most recent consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries prepared in accordance with GAAP, but excluding any
Redeemable Preferred Stock of the Borrower or any of its Consolidated
Subsidiaries. Stockholders' 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.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
21
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Borrower.
"Swing Loan" means a Loan made by Wachovia pursuant to Section
2.01(b), which may be a Base Rate Loan or a Foreign Currency Loan.
"Swing Loan Note" means the promissory note of the Borrower,
substantially in the form of Exhibit A-3, evidencing the obligation of the
Borrower to repay the Swing Loans, together with all amendments, consolidations,
modifications, renewals, and supplements thereto.
"Syndicated Dollar Loan" means a Loan made by all of the Banks
in Dollars, which shall be either a Base Rate Loan or a Euro-Dollar Loan.
"Syndicated Dollar Loan Notes" means promissory notes of the
Borrower, substantially in the form of Exhibit A-1, evidencing the obligation of
the Borrower to repay the Syndicated Dollar Loans, together with all amendments,
consolidations, modifications, renewals, and supplements thereto.
"Syndicated Foreign Currency Loan" means a Loan made by all of
the Banks in a Foreign Currency.
"Syndicated Foreign Currency Loan Notes" means promissory
notes of the Borrower, substantially in the form of Exhibit A-2, evidencing the
obligation of the Borrower to repay the Syndicated Foreign Currency Loans,
together with all amendments, consolidations, modifications, renewals and
supplements thereto.
"Syndicated Loans" means Syndicated Dollar Loans and
Syndicated Foreign Currency Loans.
"Taxes" has the meaning set forth in Section 2.11(d).
"Telerate" means, when used in connection with any designated
page and IBOR, the display page so designated on the Dow Xxxxx Telerate Service
(or such other page as may replace that page on that service for the purpose of
displaying rates comparable to IBOR).
"Termination Date" means whichever is applicable of (i) May
26, 2003, (ii) the date the Commitments are terminated pursuant to Section 6.01
following the occurrence of an Event of Default, or (iii) the date the Borrower
terminates the Commitments entirely pursuant to Section 2.08.
"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in the
ordinary course of the Borrower's business and on a temporary basis.
"Transferee" has the meaning set forth in Section 9.08(d).
"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
22
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 Commitment" means at any date, with respect to any
Bank, an amount equal to its Commitment less the aggregate outstanding principal
amount of its Syndicated Dollar Loans and Syndicated Foreign Currency Loans, but
not, in the case of Wachovia, its Swing Loans.
"Wachovia" means Wachovia Bank, N.A., a national banking
association, and its successors.
"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.
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 independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks unless with respect to any such change concurred in by the
Borrower's independent public accountants or required by GAAP, in determining
compliance with any of the provisions of this Agreement or any of the other Loan
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 Banks shall so object in writing within 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, shall mean 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.
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 Loan
Documents, unless otherwise defined therein or unless the context shall require
otherwise.
Section 1.05 Terminology. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural, and the plural shall
include the singular. Titles of Articles and Sections in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement.
23
ARTICLE II
THE CREDITS
Section 2.01 Commitments to Lend Syndicated Loans; Swing Loans.
(a) Each Bank severally agrees, on the terms and conditions
set forth herein, to make Loans (which may be, at the option of the Borrower and
subject to the terms and conditions hereof, Syndicated Foreign Currency Loans or
Syndicated Dollar Loans, and Syndicated Dollar Loans may be Domestic Loans or
Euro-Dollar Loans) to the Borrower from time to time before the Termination
Date; provided that,
(i) immediately after each such Loan is made, the sum of the
aggregate outstanding principal amount of the Syndicated Dollar Loans
and the Dollar Equivalent of the aggregate principal amount of the
Syndicated Foreign Currency Loans by such Bank shall not exceed the
amount of its Commitment,
(ii) the sum of the aggregate outstanding principal amount of
all Syndicated Loans and Swing Loans and the Dollar Equivalent of the
aggregate principal amount of the Syndicated Foreign Currency Loan and
Swing Loans which are Foreign Currency Loans shall not exceed the
aggregate amount of the Commitments, and
(iii) the Dollar Equivalent of the aggregate outstanding
principal amount of all Foreign Currency Loans shall not exceed
$25,000,000.
The Dollar Equivalent of each Foreign Currency Loan on the date each Foreign
Currency Loan is disbursed shall be deemed to be the amount of the Foreign
Currency Loan outstanding for the purpose of calculating the unutilized portion
of the Commitment on the date of disbursement. Each Syndicated Borrowing under
this Section shall be in an aggregate principal amount of (A) in the case of
Fixed Rate Borrowings, $5,000,000 (or the Dollar Equivalent thereof in any
Foreign Currency) or any larger multiple of $1,000,000 (or the Dollar Equivalent
thereof in any Foreign Currency) and (B) in the case of Base Rate Borrowings,
$2,000,000 or any larger multiple of $1,000,000 (except that in either case any
such Syndicated Borrowing may be in the aggregate amount of the Unused
Commitments) and shall be made from the several Banks 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 Syndicated Loans and reborrow under this Section at any time before the
Termination Date. Notwithstanding the foregoing, if there shall occur on or
prior to the date of any Foreign Currency Loan any change in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls which would in the opinion of the Administrative
Agent make it impracticable to make such Foreign Currency Loan, then the
Administrative Agent shall forthwith give notice thereof to the Borrower and the
Banks, and such Foreign Currency Loan shall be made on such date as a Domestic
Loan, unless the Borrower notifies the Administrative Agent at least two
Domestic Business Days before such date that it elects not to borrow on such
date.
24
(b) Swing Loans. In addition to the foregoing, Wachovia shall
from time to time, upon the request of the Borrower, if the applicable
conditions precedent in Article III have been satisfied, make Swing Loans to the
Borrower (which, at the option of the Borrower and subject to the terms and
conditions hereof, may be Foreign Currency Loans or Base Rate Loans) in an
aggregate principal amount at any time outstanding not exceeding the Dollar
Equivalent of $10,000,000; provided that, (i) immediately before such Swing Loan
is made, the aggregate amount of the Unused Commitments is not less than
$10,000,000, and (ii) immediately after such Swing Loan is made, the aggregate
outstanding principal amount of all Syndicated Loans and Swing Loans shall not
exceed the aggregate amount of the Commitments. Each Swing Loan Borrowing under
this Section 2.01(b) shall be in an aggregate principal amount of $500,000 or
any larger multiple of $100,000. Within the foregoing limits, the Borrower may
borrow under this Section 2.01(b), prepay and reborrow under this Section
2.01(b) at any time before the Termination Date. Swing Loans will be deemed to
be usage of the Commitments for the purpose of calculating availability pursuant
to Section 2.01(a)(ii), but will not reduce Wachovia's obligation to lend its
pro rata share of the remaining Unused Commitment. At any time, upon the request
of Wachovia, each Bank other than Wachovia shall, on the third Domestic Business
Day after such request is made, purchase a participating interest in Swing Loans
in an amount equal to its ratable share (based upon its respective Commitment)
of such Swing Loans which are Base Rate Loans. On such third Domestic Business
Day, each Bank will immediately transfer to Wachovia, in immediately available
funds, the amount of its participation. Whenever, at any time after Wachovia has
received from any such Bank its participating interest in a Swing Loan, the
Administrative Agent receives any payment on account thereof, the Administrative
Agent will distribute to such Bank its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Bank's participating interest was outstanding and
funded); provided, however, that in the event that such payment received by the
Administrative Agent is required to be returned, such Bank will return to the
Administrative Agent any portion thereof previously distributed by the
Administrative Agent to it. Each Bank's obligation to purchase such
participating interests shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation: (i) any set-off,
counterclaim, recoupment, defense or other right which such Bank or any other
Person may have against Wachovia requesting such purchase or any other Person
for any reason whatsoever; (ii) the occurrence or continuance of a Default or an
Event of Default or the termination of the Commitments; (iii) any adverse change
in the condition (financial or otherwise) of the Borrower or any other Person;
(iv) any breach of this Agreement by the Borrower or any other Bank; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
Section 2.02 Method of Borrowing.
(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 11:00 A.M. (Atlanta, Georgia time) for Dollar Borrowings, and 9:30 A.M.
(Atlanta, Georgia time) for Foreign Currency Borrowings, on the same Domestic
Business Day of each Base Rate Borrowing and at least 3 Euro-Dollar Business
Days before each Euro-Dollar Borrowing, and at least 3 Foreign Currency Business
Days before each Foreign Currency Borrowing, specifying:
25
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing, a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing, or a Foreign
Currency Business Day in the case of a Foreign Currency Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be
Syndicated Loans or Swing Loans, whether they are to be Base Rate
Loans, Euro-Dollar Loans or Foreign Currency Loans, and if such Loans
are to be Foreign Currency Loans, specifying the Foreign Currency, and
(iv) in the case of a Fixed Rate 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 Bank of the contents thereof and of such Bank's
ratable share of such Borrowing (or Wachovia, if it is a Swing Loan Borrowing)
and such Notice of Borrowing, once received by the Administrative Agent, shall
not thereafter be revocable by the Borrower.
(c) Not later than 11:00 A.M., or 1:00 P.M., with respect to
Base Rate Borrowings, (Atlanta, Georgia time) on the date of each Syndicated
Borrowing, each Bank 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 referred to in Section 9.01, which funds shall be in
Dollars, if such Borrowing is a Dollar Borrowing, and in the applicable Foreign
Currency, if such Borrowing is a Foreign Currency Borrowing, determined pursuant
to Section 9.01. Unless the Administrative Agent determines that any applicable
condition specified in Article III has not been satisfied, the Administrative
Agent will make the funds so received from the Banks available to the Borrower
at the Administrative Agent's aforesaid address. Unless the Administrative Agent
receives notice from a Bank, at the Administrative Agent's address referred to
in or specified pursuant to Section 9.01, 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 Bank will not make a Syndicated Loan in connection
with such Syndicated Borrowing, the Administrative Agent shall be entitled to
assume that such Bank 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 Bank's ratable
share of such Syndicated Borrowing to the Borrower for the account of such Bank.
If the Administrative Agent makes such Bank's ratable share available to the
Borrower and such Bank 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 Bank's ratable share from such Bank or the Borrower
(and for such purpose shall be entitled to charge such amount to any account of
the Borrower 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
26
during such period, provided that (i) any such payment by the Borrower of such
Bank's ratable share and interest thereon shall be without prejudice to any
rights that the Borrower may have against such Bank and (ii) until such Bank 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 Bank, it
shall forthwith notify the Borrower of such decision. Unless the Administrative
Agent determines that any applicable condition specified in Article III has not
been satisfied, Wachovia will make available to the Borrower at Wachovia's
Lending Office the amount of any such Borrowing which is a Swing Loan Borrowing.
(d) If any Bank 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 Bank, such Bank 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 Bank to the Administrative Agent
as provided in paragraph (c) of this Section, or remitted by the Borrower to the
Administrative Agent as provided in Section 2.11, as the case may be; provided,
however, that if the Syndicated Loan which is to be repaid is a Foreign Currency
Loan, the foregoing provisions shall apply only if the new Syndicated Loan is to
be made in the same Foreign Currency.
(e) Notwithstanding anything to the contrary contained in this
Agreement, 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, (i) no Fixed
Rate Borrowing may be made and, and (ii) all Refunding Loans shall be made as
Base Rate Loans (but shall bear interest at the Default Rate, if applicable,
pursuant to Section 2.05(b), (c), or (f)).
(f) In the event that a Notice of Borrowing fails to specify
whether the Syndicated Loans comprising such Borrowing are to be Base Rate
Loans, Euro-Dollar Loans or Foreign Currency 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 Syndicated 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 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, which shall be in the Dollar Equivalent of such
maturing Loans, if such maturing Loans were Foreign Currency Loans.
(g) Notwithstanding anything to the contrary contained herein,
there shall not be more than 8 Fixed Rate Borrowings outstanding at any given
time.
27
Section 2.03 Notes.
(a) The Syndicated Loans of each Bank shall be evidenced by a
single Syndicated Dollar Loan Note in an amount equal to the original principal
amount of such Bank's Commitment and a single Syndicated Foreign Currency Loan
Note, each payable to the order of such Bank for the account of its Lending
Office. The Swing Loans shall be evidenced by a single Swing Loan Note payable
to the order of Wachovia in the original principal amount of the Dollar
Equivalent of $10,000,000.
(b) Upon receipt of each Bank's Notes pursuant to Section
3.01, the Administrative Agent shall deliver such Notes to such Bank. Each Bank
(or Wachovia, with respect to the Swing Loan) shall record, and prior to any
transfer of its Notes shall endorse on the schedules forming a part thereof
appropriate notations to evidence, the date, amount and maturity of, and
effective interest rate for, each Loan made by it, the date and amount of each
payment of principal made by the Borrower with respect thereto, whether such
Loan is a Base Rate Loan, Euro-Dollar Loan or Foreign Currency Loan, and if a
Foreign Currency Loan, a specification of the Foreign Currency, and such
schedules of each such Bank's Notes shall constitute rebuttable presumptive
evidence of the principal amounts owing and unpaid on such Bank's Notes;
provided that the failure of any Bank 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 Bank to assign its Notes.
Each Bank is hereby irrevocably authorized by the Borrower so to endorse its
Notes and to attach to and make a part of any Note a continuation of any such
schedule as and when required.
Section 2.04 Maturity of Loans.
(a) Each Loan included in any Borrowing shall mature, and the
principal amount thereof shall be due and payable, on the last day of the
Interest Period applicable to such Borrowing.
(b) Notwithstanding the foregoing, the outstanding principal
amount of the Loans, if any, together with all accrued but unpaid interest and
fees thereon, if any, shall be due and payable on the Termination Date.
Section 2.05 Interest Rates.
(a) "Applicable Margin" means:
(i) for the period commencing on the Closing Date to
and including the first Performance Pricing Determination
Date, (x) for any Base Rate Loan, 0%, and (y) for any
Euro-Dollar Loan or Foreign Currency Loan, 2.250%; and
(ii) from and after the first Performance Pricing
Determination Date, (x) for any Base Rate Loan, 0%, and (y)
for any Euro-Dollar Loan or Foreign Currency Loan, the
percentage determined on each Performance Pricing
Determination Date by reference to the table set forth below
and the Leverage Ratio for the quarterly or annual period
ending immediately prior to such Performance Pricing
Determination Date.
28
Leverage Ratio Applicable Margin
-------------- -----------------
< 1.50 1.00%
=> 1.50 and < 2.00 1.25%
=> 2.00 and < 2.50 1.50%
=> 2.50 and < 3.00 1.75%
=> 3.00 and < 3.25 2.25%
=> 3.25 2.75%
In determining interest for purposes of this Section 2.05 and
fees for purposes of Section 2.06, the Borrower and the Banks shall refer to the
Borrower's most recent consolidated quarterly and annual (as the case may be)
financial statements delivered pursuant to Section 5.01(a) or (b), as the case
may be. If such financial statements require a change in interest pursuant to
this Section 2.05 or fees pursuant to Section 2.06, the Borrower shall deliver
to the Administrative Agent, along with such financial statements, a notice to
that effect, which notice shall set forth in reasonable detail the calculations
supporting the required change. The "Performance Pricing Determination Date" is
the date which is the last date on which such financial statements are permitted
to be delivered pursuant to Section 5.01(a) or (b), as applicable. Any such
required change in interest and fees shall become effective on such Performance
Pricing Determination Date, and shall be in effect until the next Performance
Pricing Determination Date, provided that: (x) for Fixed Rate Loans, changes in
interest shall only be effective for Interest Periods commencing on or after the
Performance Pricing Determination Date; and (y) no fees or interest shall be
decreased pursuant to this Section 2.05 or Section 2.06 if a Default is in
existence on the Performance Pricing Determination Date, unless such Default in
existence on the Performance Pricing Date was not an Event of Default on such
date and did not thereafter become an Event of Default.
(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. Such interest shall be payable for each Interest Period on
the last day thereof. 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 3 months, at intervals of 3 months after
the first day thereof. 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.
29
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 appear as the British Bankers Association Settlement Rate for U.S. Dollars
on the Telerate Screen Page 3750 effective as of 11:00 A.M., London time, 2
Euro-Dollar Business Days prior to the first day of such Interest Period,
provided that if no such offered rate appears 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 2 major banks in New York City, selected by the Administrative
Agent, at approximately 10:00 A.M., New York City time, 2 Euro-Dollar Business
Days prior to the first day of such Interest Period, for deposits in Dollars
offered to leading European banks for a period comparable to such Interest
Period in an amount comparable to the principal amount of such Euro-Dollar Loan.
"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 Bank 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) Each Foreign Currency 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 IBOR 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 3 months, at intervals of 3 months after the first day
thereof. Any overdue principal of and, to the extent permitted by law, overdue
interest on any Foreign Currency Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the Default Rate.
"Adjusted IBOR Rate" means, with respect to each Interest
Period for a Foreign Currency Loan, the sum of (i) the rate obtained by dividing
(A) IBOR for such Interest Period by (B) a percentage equal to 1 minus the then
stated maximum rate (stated as a decimal) of all reserves requirements
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves) applicable to any member bank of the Federal Reserve System
as defined in Regulation D (or against any successor category of liabilities as
defined in Regulation D), plus (ii) if the relevant Foreign Currency Loan is in
British pounds sterling, a percentage sufficient to compensate the Banks for the
cost of complying with any reserves, liquidity and/or special deposit
30
requirements of the Bank of England directly or indirectly affecting the
maintenance or funding of such Foreign Currency Loan.
"IBOR" means, for any Interest Period, with respect to Foreign
Currency Loans, the offered rate for deposits in the applicable Foreign
Currency, for a period comparable to the Interest Period and in an amount
comparable to the amount of such Foreign Currency Loan appearing on Telerate
Page 3750, or, if Telerate is unavailable, the Reuters Screen Page FRBD, FRBE,
FRBF or FRBG, as applicable, as of 11:00 A.M. (London, England time) on the day
that is two Business Days prior to the first day of the Interest Period. If the
foregoing rate is unavailable from Telerate or the Reuters Screen for any
reason, then such rate shall be determined by the Administrative Agent from any
other interest rate reporting service of recognized standing designated in
writing by the Administrative Agent to the Borrower.
(e) 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 Banks by telecopier of each rate of
interest so determined, and its determination thereof shall be conclusive in the
absence of manifest error.
(f) 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) may, at the election
of the Required Banks, 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 Bank, a commitment fee, calculated in the manner
provided in the last paragraph of Section 2.05(a)(ii), on the aggregate daily
amount of such Bank's Unused Commitment, at a rate per annum equal to: (i) for
the period commencing on the Closing Date to and including the first Performance
Pricing Determination Date, 0.50%; and (ii) from and after the first Performance
Pricing Determination Date, the percentage determined on each Performance
Pricing Determination Date by reference to the table set forth below and the
Leverage Ratio for the quarterly or annual period ending immediately prior to
such Performance Pricing Determination Date:
Leverage Ratio Commitment Fee
-------------- --------------
< 1.50 0.20%
=> 1.50 and < 2.00 0.25%
=> 2.00 and < 3.00 0.375%
=> 3.00 0.50%
Such commitment fees shall accrue from and including the Closing Date to (but
excluding the Termination Date) and shall be payable on each March 31, June 30,
September 30 and December 31 and on the Termination Date.
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(b) On the Closing Date, the Borrower shall pay to the
Administrative Agent, for the ratable account of each Bank, a fully-earned,
non-refundable upfront fee based on the allocation of the Commitments, as agreed
upon pursuant to a fee memorandum among the Administrative Agent and the Banks.
(c) The Borrower shall pay to the Administrative Agent, for
the account and sole benefit of the Administrative Agent or the Arranger, such
fees and other amounts at such times as set forth in the Arranger's Letter
Agreement.
Section 2.07 Optional Termination or Reduction of Commitments. The
Borrower may, upon at least 3 Domestic Business Days' notice to the
Administrative Agent, terminate at any time, or proportionately reduce the
Unused Commitments from time to time by an aggregate amount of at least
$5,000,000 or any larger multiple of $1,000,000. If the Commitments are
terminated in their entirety, all accrued but unpaid interest and fees thereon,
if any, 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 then
outstanding, together with all accrued but unpaid interest and fees thereon, if
any, shall be due and payable on such date.
Section 2.09 Optional Prepayments.
(a) The Borrower may, upon the same Domestic Business Day's
notice to the Administrative Agent, prepay any Borrowing in whole at any time,
or from time to time in part in amounts aggregating at least (i) in the case of
Syndicated Loans which are Base Rate Loans, $2,000,000 or any larger multiple of
$1,000,000, (ii) in the case of Syndicated Loans which are Fixed Rate Loans,
$5,000,000 or any larger multiple of $1,000,000, and (iii) in the case of Swing
Loans, $100,000, in each case by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment, and, in the
case of Fixed Rate Loans, any amounts payable pursuant to Section 8.05(a) as a
result of such prepayment. Each such optional prepayment shall be applied to
prepay ratably the Base Rate Loans or Fixed Rate Loans, as applicable, of the
several Banks, or of Wachovia, in the case of Swing Loans, included in such
Borrowing. Notwithstanding the foregoing, so long as any Mortgages are in effect
in favor of the Collateral Agent on any Plant or Designated Other Real Property
located in the State of New York, the Borrower shall not make a voluntary
prepayment in an amount which would cause the aggregate outstanding principal
amount of the Loans to be less than $25,000,000.
(b) Upon receipt of a notice of prepayment pursuant to this
Section 2.09, the Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank's ratable share of such prepayment and such
notice, once received by the Agent, shall not thereafter be revocable by the
Borrower.
Section 2.10 Mandatory Prepayments.
(a) On each date on which the Commitments are reduced pursuant
to Section 2.07 or Section 2.08, the Borrower shall repay or prepay such
principal amount of the outstanding Loans, if any (together with interest
accrued thereon and any amount due under Section 8.05(a)), as may be necessary
32
so that after such payment the aggregate unpaid principal amount of the Loans
does not exceed the aggregate amount of the Commitments as then reduced. All
such prepayments shall be applied first to the Syndicated Dollar Loan Notes and
then to the Swing Loan Note.
(b) If the Administrative Agent determines at any time (either
on its own initiative or at the instance of any Bank) that the aggregate
principal amount of the Foreign Currency Loans outstanding (after converting
each Foreign Currency Loan to its Dollar Equivalent on the date of calculation)
at any time exceeds $25,000,000, then upon 5 Foreign Currency Business Days'
written notice from the Administrative Agent, the Borrower shall prepay an
aggregate principal amount of Foreign Currency Loans sufficient to bring the
aggregate of the Foreign Currency Loans outstanding within an amount equal to
$25,000,000. Nothing in the foregoing shall require the Administrative Agent to
make any such calculation unless expressly requested to do so by the Required
Banks.
(c) Within 30 days of the end of each Fiscal Quarter in which
the Borrower receives net cash proceeds from any Receivables Securitization
Program, the Borrower shall certify to the Administrative Agent the current
amount of Maximum Available Proceeds under such Receivables Securitization
Program and prepay the outstanding Loans in an aggregate principal amount equal
to:
(i) 85% of such net cash proceeds, rounded upwards to
the nearest $100,000, as to Maximum Available Proceeds in an
amount equal to or less than $80,000,000, but including such
net cash proceeds only to the extent they are derived from
sales of Receivables in an aggregate amount in excess of the
highest level of aggregate sales of Receivables for which net
proceeds have previously been paid pursuant to this clause
(i), until aggregate net cash proceeds equal to 85% of Maximum
Available Proceeds have been used to make prepayments pursuant
to this clause (i); and
(ii) 100% of such net cash proceeds, rounded upwards
to the nearest $100,000, as to Maximum Available Proceeds in
an amount greater than $80,000,000, but including such net
cash proceeds only to the extent they are derived from sales
of Receivables in an aggregate amount in excess of the highest
level of aggregate sales of Receivables for which net proceeds
have previously been paid pursuant to this clause (ii), until
aggregate net cash proceeds equal to 100% of Maximum Available
Proceeds in excess of $80,000,000 have been used to make
prepayments pursuant to this clause (ii).
The Commitments shall be ratably reduced by the amount of such prepayments;
provided, that (x) prepayments pursuant to clause (i) above shall not reduce the
Commitments below an aggregate amount of $75,000,000, and (y) prepayments
pursuant to clause (ii) above shall reduce the Commitments without regard to the
$75,000,000 limitation contained in clause (x).
(d) Each such payment or prepayment under paragraph (a), (b)
or (c) above shall be applied ratably to the Loans of the Banks outstanding on
the date of payment or prepayment in the following order of priority:(i) first,
to Syndicated Loans which are Base Rate Loans; (ii) secondly, to Swing Loans
33
which are Base Rate Loans; (iii) thirdly, to Euro-Dollar Loans; (iv) fourthly,
to Syndicated Loans which are Foreign Currency Loans, and (v) lastly, to Swing
Loans which are Foreign Currency Loans.
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 (subject
to paragraph (c) below with respect to Foreign Currency Loans) immediately
available in Atlanta, Georgia, to the Administrative Agent at its address
referred to in Section 9.01. The Administrative Agent will promptly distribute
to Wachovia each such payment received by the Administrative Agent on account of
the Swing Loans, and to each Bank its ratable share of each such payment
received by the Administrative Agent for the account of the Banks.
(b) Whenever any payment of principal of, or interest on, the
Domestic 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 or the Foreign Currency Loans shall be due on
a day which is not a Euro-Dollar Business Day or Foreign Currency Business Day,
as the case may be, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day or Foreign Currency Business Day, as the
case may be, unless such Euro-Dollar Business Day or Foreign Currency Business
Day, as the case may be, falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Euro-Dollar Business Day or
Foreign Currency Business Day, as the case may be.
(c) All payments of principal and interest with respect to
Foreign Currency Loans shall be made in the Foreign Currency in which the
related Foreign Currency Loan was made.
(d) (i) 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 (except as permitted below) or therein excluding in
the case of each Bank, taxes imposed on or measured by its net income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which such
Bank is organized or any political subdivision thereof and, in the case of each
Bank, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Bank'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 taxing authority, shall promptly
furnish to any Bank in respect of which such deduction or withholding is made
all receipts and other documents evidencing such payment and shall pay to such
Bank additional amounts as may be necessary in order that the amount received by
such Bank after the required withholding or other payment shall equal the amount
such Bank would have received had no such withholding or other payment been
made.
34
(ii) Each Bank which is organized outside the United
States shall so notify the Borrower thereof and shall also promptly notify the
Borrower of any change in its Lending Office and shall in each case deliver to
the Borrower such certificates, documents or other evidence, as required by the
Code or Treasury Regulations issued pursuant thereto, including Internal Revenue
Service Form 1001 or Form 4224, properly completed and duly executed by such
Bank establishing that such payment is (x) not subject to withholding under the
Code because such payment is effectively connected with the conduct by such Bank
of a trade or business in the United States or (y) totally exempt from United
States tax under a provision of an applicable tax treaty. Unless the Borrower
has received forms or other documents reasonably satisfactory to it indicating
that payments hereunder or under the Notes are not subject to United States
withholding tax or are subject to such at a rate reduced by an applicable tax
treaty, the Borrower shall withhold taxes from such payments at the applicable
statutory rate in the case of payments to or for any Bank organized under the
laws of a jurisdiction outside the United States.
(iii) The Borrower shall not be required to pay any
additional amounts to any Bank in respect of United States withholding tax
pursuant to Section 2.11(d)(i) if the obligation to pay such additional amounts
would not have arisen but for a failure by the Bank to comply with the
provisions of Section 2.11(d)(ii) above for any reason (including the failure of
the Bank to deliver the documents referred to above by reason of its inability
to qualify for total exemption from United States withholding or a change in
circumstances that renders the Bank unable to so qualify) other than (x) a
change in applicable law, regulation or official interpretation thereof or (y)
an amendment, modification or revocation of any applicable tax treaty or a
change in official position regarding the application or interpretation thereof,
in each case after the Closing Date (and in the case of a Transferee (as defined
in Section 9.08(d), after the date of assignment or transfer.
(iv) If, solely as a result of an event described in
clause (x) or (y) of Section 2.11(d)(iii) after the Closing Date (or, in the
case of a Transferee, after the date of assignment or transfer), a Bank (x) is
unable to provide to the Borrower a form otherwise required to be delivered by
it pursuant to Section 2.11(d)(ii), or (y) makes any payment or becomes liable
to make any payment on account of any Taxes with respect to payments by the
Borrower hereunder, the Borrower may, at its option, either (A) prepay the
portion of the Loans held by such Bank or (B) continue to make payments to such
Bank, under the terms of this Agreement and the applicable Notes, which payments
shall be made in accordance with Section 2.11(d)(i) above. If the Borrower
exercises its option under clause (B) of this Section 2.11(d)(iv), the relevant
Bank agrees to take such steps as reasonably may be available to it under
applicable tax laws and any applicable tax treaty or convention (including, if
legally available, furnishing such certificate) to obtain an exemption from, or
reduction (to the lowest applicable rate) of, such Taxes, except to the extent
that taking such a step would be materially disadvantageous to such Bank.
(v) Any Bank claiming any additional amounts payable
pursuant to this Section 2.11 shall use reasonable efforts (consistent with
legal and regulatory restrictions) to file any certificate or document requested
by the Borrower or to change the jurisdiction of its applicable Lending Office
if the making of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may be thereafter accrue and would
not be otherwise materially disadvantageous to such Bank.
35
(vi) In the event any Bank receives a refund of any
Taxes paid by the Borrower pursuant to this Section 2.11(d), it will pay to the
Borrower the amount of such refund promptly upon receipt thereof; provided,
however, if at any time thereafter it is required to return such refund, the
Borrower shall promptly repay to it the amount of such refund.
(vii) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower and the Banks contained in this Section 2.11(d) shall be applicable
with respect to any Participant, Assignee or other Transferee, and any
calculations required by such provisions (x) shall be made based upon the
circumstances of such Participant, Assignee or other Transferee, and (y)
constitute a continuing agreement and shall survive the termination of this
Agreement and the payment in full or cancellation of the Notes.
Section 2.12 Computation of Interest and Fees. Interest
on Domestic Loans based on the Base Rate 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 and Foreign
Currency Loans shall be computed on the basis of a year of 360 days (except for
any Foreign Currency Loans outstanding in British pounds sterling or in Canadian
dollars, (or, if selected as a Foreign Currency pursuant to clause (ii) of the
definition of "Foreign Currency," in Australian dollars, Belgian francs, Irish
punts or New Zealand dollars), which shall be computed on the basis of a year of
365 or 366 days, as the case may be) 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. Facility 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).
ARTICLE III
CONDITIONS TO BORROWINGS
Section 3.01 Conditions to First Borrowing. The obligation of each Bank
to make a Loan on the occasion of the first Borrowing is subject to the
satisfaction of the conditions set forth in Section 3.02 and receipt by the
Administrative Agent of the following (as to the documents described in
paragraphs (a), (c), (d), (e) and (h) below, in sufficient number of
counterparts for delivery of a counterpart to each Bank and retention of one
counterpart by the Administrative 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 Administrative Agent by overnight courier;
(b) a duly executed Syndicated Dollar Loan Note and a duly
executed Syndicated Foreign Currency Loan Note for the account of each
Bank, and a duly executed Swing Loan Note for the account of Wachovia,
in each case complying with the provisions of Section 2.03;
36
(c) an opinion letter (together with any opinions of local
counsel relied on therein) of (i) Weil, Gotshal & Xxxxxx LLP, special
counsel for the Borrower and the Guarantors, and (ii) Xxxxxx X. Xxxxx,
Xx., General Counsel for the Borrower and the Guarantors, each dated as
of the Closing Date, substantially in the form of Exhibits B-1 and B-2,
respectively, and covering such additional matters relating to the
transactions contemplated hereby as the Administrative Agent or any
Bank may reasonably request;
(d) an opinion of Xxxxx, Day, Xxxxxx & Xxxxx, special counsel
for the Administrative Agent, 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 the
Administrative Agent may reasonably request;
(e) a certificate (the "Closing Certificate") substantially in
the form of Exhibit G), dated as of the Closing Date, signed by a
principal financial 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) with respect to the representations and warranties
of the Borrower contained in Article IV, (x) if they are expressly
qualified by materiality, they are true on and as of the date of the
first Borrowing hereunder, and (y) if they are not so qualified, they
are true in all material respects on and as of the date of the first
Borrowing hereunder;
(f) all documents which the Administrative Agent or any Bank
may reasonably request relating to the existence of the Borrower, the
corporate authority for and the validity of this Agreement, Notes, the
Guaranty and the Contribution Agreement, and any other matters relevant
hereto, all in form and substance satisfactory to the Administrative
Agent, including, without limitation, a certificate of the Borrower and
each Guarantor, signed by the Secretary or an Assistant Secretary of
the Borrower and each Guarantor, respectively, substantially in the
form of Exhibit H (the "Officer's Certificate"), --------- certifying
as to the names, true signatures and incumbency of the officer or
officers of the Borrower or such Guarantor authorized to execute and
deliver the Loan Documents to which it is a party, and certified copies
of the following items: (i) the Borrower's and each Guarantor's
Certificate of Incorporation, (ii) the Borrower's and each Guarantor's
Bylaws, (iii) certificates of the Secretary of State of the
jurisdiction of incorporation as to the good standing of each of the
Borrower and the Guarantors, and (iv) the action taken by the Board of
Directors of the Borrower and each Guarantor authorizing the Borrower's
or such Guarantor's execution, delivery and performance of this
Agreement, the Notes and the other Loan Documents to which the Borrower
or such Guarantor is a party;
(g) counterparts of the Guaranty, duly executed by each of the
Guarantors, the Contribution Agreement, the Domestic Stock Pledge
Agreement, the Security Agreement and, if applicable, the Patent
Assignment, duly executed by the Borrower and each of the Guarantors
(other than, with respect to the Domestic Stock Pledge Agreement, any
Guarantors not owning Domestic Subsidiaries) and the Foreign Stock
Pledge Agreement, duly executed by the Borrower and each applicable
Domestic Subsidiary, together with, as to the Foreign Stock Pledge
Agreement and the Domestic Stock Pledge Agreement, the powers of
attorney or blank stock powers pursuant thereto and with delivery of
37
the relevant stock certificates or evidence of registration of the
pledge or such other document or other writing which the Administrative
Agent may reasonably require with respect thereto and as to the
Security Agreement, the UCC-1 financing statements relating to the
personal property of the Borrower and the Guarantors, together with
such lien search reports regarding such personal property as are
available on the Closing Date;
(h) counterparts of the Intercreditor Agreement, duly executed
by each party thereto;
(i) evidence satisfactory to the Administrative Agent of
termination of the Credit Agreement dated as of September 26, 1995,
among the Borrower, the Administrative Agent and the Banks listed
therein; and
(j) receipt of the upfront fees set forth in Section 2.06(b)
and all fees payable on the Closing Date pursuant to the Arranger's
Letter Agreement.
In addition, if the Borrower desires funding of a Fixed Rate 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
Fixed Rate Loan , and (ii) the Borrower shall indemnify the Banks 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 Fixed Rate Loan on such
date.
Section 3.02 Conditions to All Borrowings. The obligation of each Bank
to make a Syndicated Loan (or of Wachovia, to make a Swing Loan) on the occasion
of each Borrowing is subject to the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a Notice of
Borrowing;
(b) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing;
(c) the fact that, with respect to the representations and
warranties of the Borrower contained in Article IV, (x) if they are
expressly qualified by materiality, they are true on and as of the date
of such Borrowing, and (y) if they are not so qualified, they are true
in all material respects on and as of the date of such Borrowing; and
(d) the fact that, immediately after such Borrowing, the
conditions set forth in clauses (i) and (ii) of Section 2.01(a) shall
have been satisfied.
Each Syndicated Borrowing and each Swing Loan Borrowing hereunder shall be
deemed to be a representation and warranty by the Borrower on the date of such
Borrowing as to the truth and accuracy of the facts specified in paragraphs (b),
(c) and (d) of this Section.
38
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower (and, as expressly stated, the Guarantors)
represents and warrants that:
Section 4.01 Corporate Existence and Power. The Borrower 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 the failure to be so qualified would reasonably be
expected to have or cause a Material Adverse Effect, and has all corporate
powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted, except where the failure to
have any of the foregoing would not reasonably be expected to have or cause a
Material Adverse Effect.
Section 4.02 Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower and each
Guarantor, respectively, of this Agreement, the Notes, the Guaranty, the
Contribution Agreement and the other Loan Documents to which they are parties
(i) are within the Borrower's and each Guarantor's corporate powers, (ii) have
been duly authorized by all necessary corporate action, (iii) require no action
by or in respect of or filing with, any governmental body, agency or official,
except pursuant to the Security Documents; (iv) do not contravene, or constitute
a default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Borrower or any Guarantor or of
any agreement, judgment, injunction, order, decree or other instrument binding
upon the Borrower or any of its Subsidiaries, and (v) do not result in the
creation or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries, except pursuant to the Security Documents.
Section 4.03 Binding Effect. Each of this Agreement, the Guaranty and
the Contribution Agreement constitutes a valid and binding agreement of the
Borrower and the Guarantors, as applicable, enforceable in accordance with its
terms, and the Notes and the other Loan Documents, when executed and delivered
in accordance with this Agreement, will constitute valid and binding obligations
of the Borrower enforceable in accordance with their respective terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting the enforceability of creditors' rights
and remedies generally, and subject, as to enforceability, to general principles
of equity, including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a proceeding at law
or in equity).
Section 4.04 Financial Information.
(a) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of October 3, 1999 and the related consolidated
statements of income, shareholders' equity and cash flows for the Fiscal Year
then ended, reported on by Xxxxxx Xxxxxxxx LLP, copies of which have been
delivered to each of the Banks, and the unaudited consolidated financial
statements of the Borrower for the interim period ended April 2, 2000, copies of
which have been delivered to each of the Banks, fairly present, in conformity
39
with GAAP, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such dates and their consolidated results of
operations and cash flows for such periods stated.
(b) Since October 3, 1999 there has been no event, act,
condition or occurrence having a Material Adverse Effect.
Section 4.05 No Litigation. There is no action, suit or proceeding
pending, or to the knowledge of the Borrower or any Guarantor overtly
threatened, against the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official which could have a
Material Adverse Effect or which in any manner draws into question the validity
of or could impair the ability of the Borrower or any Guarantor to perform its
obligations under, this Agreement, the Notes, the Guaranty, the Contribution
Agreement, the Security Documents, as applicable, or any of the other Loan
Documents.
Section 4.06 Compliance with ERISA.
(a) 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 material liability to the PBGC or a Plan under Title IV of ERISA
that has not been satisfied in a timely manner.
(b) Neither the Borrower nor any member of the Controlled
Group has incurred any withdrawal liability with respect to any Multiemployer
Plan under Title IV of ERISA, and no such liability in an aggregate amount of
$3,000,000 or more is expected to be incurred.
Section 4.07 Compliance with Laws; Payment of Taxes. The Borrower and
its Subsidiaries are in compliance with all applicable laws, regulations and
similar requirements of governmental authorities, except where the failure to so
comply would have, or would reasonably be expected to have or cause, a Material
Adverse Effect. 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 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. The federal
income tax liabilities of the Borrower and its Subsidiaries on a consolidated
basis have been determined by the Internal Revenue Service and paid for all
Fiscal Years up to and including the Fiscal Year ended September, 1993.
Section 4.08 Subsidiaries. Each of the Borrower's Subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, is duly qualified to transact business in
every jurisdiction wherein the failure to be so qualified would have, or would
reasonably be expected to have or cause, a Material Adverse Effect, and has all
corporate powers and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted, except where the
failure to have any of the foregoing would not have, or would not reasonably be
expected to have or cause, a Material Adverse Effect. The Borrower has no
Subsidiaries except for those Subsidiaries listed on Schedule 4.08, as it may be
40
supplemented from time to time by the Borrower, which accurately sets forth each
such Subsidiary's complete name and jurisdiction of incorporation and indicates
whether it is a Significant Domestic Subsidiary or a Significant Foreign
Subsidiary, and if it is a Significant Foreign Subsidiary, whether it is a
Significant Direct Foreign Subsidiary.
Section 4.09 Investment Company Act. Neither the Borrower nor any of
its 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 its 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.
Section 4.11 Ownership of Property; Liens. Each of the Borrower and its
Consolidated 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 5.16.
Section 4.12 No Default. Neither the Borrower nor any of its
Consolidated 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 written information heretofore
furnished by the Borrower to the Administrative Agent or any Bank for purposes
of or in connection with this Agreement or any transaction contemplated hereby
is, and all such written information hereafter furnished by the Borrower to the
Administrative Agent or any Bank 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. No responsible officer of the Borrower is
aware of any facts in existence as of the Closing Date which reasonably would be
expected to have or cause a Material Adverse Effect.
Section 4.14 Environmental Matters.
(a) Neither the Borrower nor any Subsidiary is subject to any
Environmental Liability which could have or cause a Material Adverse Effect and,
except as disclosed on Schedule 4.14, 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 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 Properties or are otherwise present at, on, in or under the 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 the
41
ordinary course of business in material compliance with all applicable
Environmental Requirements.
(c) The Borrower, and each of its Subsidiaries and Affiliates,
has procured all Environmental Authorizations necessary for the conduct of its
business, and is in material compliance with all Environmental Requirements in
connection with the operation of the Properties and the Borrower's, and each of
its Subsidiary's and Affiliate's, respective businesses.
Section 4.15 Capital Stock. To the best knowledge of the Borrower, all
Capital Stock, debentures, bonds, notes and all other securities of the Borrower
and its 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. The
issued shares of Capital Stock of the 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 its
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 Loan Documents and the making of the Loans under this Agreement:
(i) the Borrower and the Guarantors will not (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 Loan Documents and with
respect to the Loans will not be rendered avoidable under any Other Applicable
Law. For purposes of this Section 4.17, "Bankruptcy Code" means Title 11 of the
United States Code, "UFTA" means the Uniform Fraudulent Transfer Act, "UFCA"
means the Uniform Fraudulent Conveyance Act, and "Other Applicable Law" means
any other applicable state 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 its Subsidiaries has
(either in the name of the Borrower or in such Subsidiary's own name), with
financially sound and reputable insurance companies, insurance in at least such
amounts and against at least such risks (including on all its property, and
public liability and worker's compensation) as are usually insured against in
42
the same general area by companies of established repute engaged in the same or
similar business.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any amount payable hereunder or under any Note remains
unpaid:
Section 5.01 Information. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 90 days after
the end of each Fiscal Year, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such Fiscal
Year and the related consolidated statements of income, shareholders'
equity and cash flows for such Fiscal Year, setting forth in each case
in comparative form the figures for the previous Fiscal Year, all
certified by Xxxxxx Xxxxxxxx LLP or other independent public
accountants of nationally recognized standing, with such certification
to be unqualified, except for immaterial exceptions not giving rise to
qualification;
(b) as soon as available and in any event within 45 days after
the end of each of the first 3 Fiscal Quarters of each Fiscal Year, a
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such Fiscal Quarter and the related
statement of income and statement of cash flows for such Fiscal Quarter
and for the portion of the Fiscal Year ended at the end of such Fiscal
Quarter, setting forth in each case in comparative form the figures for
the corresponding 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
the chief financial officer or the chief accounting officer of the
Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) above, a certificate,
substantially in the form of Exhibit F (a "Compliance Certificate"), of
the chief financial officer, the chief accounting officer or the
treasurer of the Borrower (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in
compliance with the requirements of Section 5.05, Sections 5.15 through
5.20, inclusive, and Section 5.24 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, a statement of
the firm of independent public accountants which reported on such
statements to the effect that nothing has come to their attention to
cause them to believe that any Default existed on the date of such
financial statements;
43
(e) within 5 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 is
taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(g) 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;
(h) 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;
(i) as soon as available and in any event within 90 days after
the end of each Fiscal Year, a projected consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries for the next (current)
Fiscal Year and the related projected consolidated statements of
income, shareholders' equity and cash flows for such next (current)
Fiscal Year, in each case by Fiscal Quarter for such Fiscal Year; and
(j) from time to time such additional information regarding
the financial position or business of the Borrower and its Subsidiaries
as the Administrative Agent, at the request of any Bank, may reasonably
request.
Section 5.02 Inspection of Property, Books and Records. 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) subject to Section 9.09, permit, and cause each Subsidiary
to permit, representatives of any Bank at such Bank's expense prior to the
occurrence of a Default and at the Borrower's expense after the occurrence of a
Default to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants, and the Borrower agrees to
cooperate and assist in such visits and inspections, in each case upon
reasonable notice and at reasonable times; provided, that as to inspections of
books and records (but not as to visits with officers, employees and independent
public accountants), any such inspections prior to the occurrence of a Default
shall be coordinated through the Administrative Agent, and shall be limited to
no more than one such inspection for all Banks in any Fiscal Quarter.
44
Section 5.03 Maintenance of Existence. Except as otherwise permitted by
Section 5.05, the Borrower shall, and shall cause each Subsidiary to, maintain
its corporate existence and carry on its business in substantially the same
manner and in substantially the same fields as such business is now carried on
and maintained.
Section 5.04 Dissolution. Neither the Borrower nor any of its
Subsidiaries shall suffer or permit dissolution or liquidation either in whole
or in part, except through corporate reorganization to the extent permitted by
Section 5.05.
Section 5.05 Consolidations, Mergers and Sales of Assets. The Borrower
will not, nor will it permit any Subsidiary to, consolidate or merge with or
into, or sell, lease or otherwise transfer all or any substantial part of its
assets to, any other Person, or discontinue or eliminate any business line or
segment, provided that:
(a) the Borrower may merge with another Person if (i) such
Person was organized under the laws of the United States of America or
one of its states, (ii) the Borrower is the corporation surviving such
merger, (iii) immediately after giving effect to such merger, no
Default shall have occurred and be continuing and (iv) the Borrower has
furnished to the Administrative Agent and the Banks a pro forma
Compliance Certificate giving effect to such merger and showing
compliance with the covenants calculated pursuant thereto;
(b) Subsidiaries of the Borrower may merge with (i) one
another, or (ii) so long as the Borrower is the surviving corporation,
with the Borrower; and
(c) 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, subject to Sections
5.21(b) and 5.22(b), if applicable:
(1) during any Fiscal Quarter, a transfer of assets
or the discontinuance or elimination of a business line or
segment (in a single transaction or in a series of related
transactions) unless the aggregate assets to be so transferred
or utilized in a business line or segment to be discontinued,
when combined with all other assets transferred or utilized in
a business line or segment to be discontinued, in such Fiscal
Quarter and the most recent 3 consecutive Fiscal Quarters then
ended, either (x) constituted more than 10% of Consolidated
Total Assets measured as of the end of the immediately
preceding Fiscal Quarter for which the Borrower has supplied
financial statements pursuant to this Agreement, or (y)
contributed more than 10% of Consolidated Operating Income
during the most recent 4 consecutive Fiscal Quarters for which
the Borrower has supplied financial statements pursuant to
this Agreement (disregarding any Fiscal Quarter in which there
was an operating loss, on a consolidated basis); provided,
that, notwithstanding the foregoing, in no event shall any
disposition of assets pursuant to this Section 5.05(c)(1) be
permitted in the event that after such disposition, the
requirements of the final paragraph of Section 5.21(a) would
not be satisfied or Consolidated Total Assets shall be less
than 90% of Consolidated Total Assets measured as of the end
of the Fiscal Year ended October 3, 1999, and the Collateral
45
Agent shall release any Liens which it has on any such assets
sold as permitted by this Section 5.05(c)(1), or
(2) the Borrower may enter into an arrangement to
sell Receivables pursuant to a Receivables Securitization
Program if, as of the end of each of the 2 immediately
preceding Fiscal Quarters prior to entering into such
arrangement, the Leverage Ratio has been equal to or less than
2.50 to 1.00.
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 Sections 5.15 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. Subject to the foregoing, the proceeds of
the Loans may be used for general corporate purposes and to refinance existing
Debt.
Section 5.07 Compliance with Laws; Payment of Taxes.
(a) The Borrower will, and will cause each of its Subsidiaries
and each member of the Controlled Group to, comply with applicable laws
(including but not limited to ERISA), regulations and similar requirements of
governmental authorities (including but not limited to PBGC), except (i) where
the necessity of such compliance is being contested in good faith through
appropriate proceedings diligently pursued or (ii) the failure to do so would
not have a Material Adverse Effect. The Borrower will, and will cause each of
its Subsidiaries to, pay promptly when due all taxes, assessments, governmental
charges, claims for labor, supplies, rent and other obligations which, if
unpaid, would 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 Administrative Agent, the Borrower will set up reserves in
accordance with GAAP.
(b) The Borrower shall not permit the aggregate complete or
partial withdrawal liability under Title IV of ERISA with respect to
Multiemployer Plans incurred by the Borrower and members of the Controlled Group
to exceed $3,000,000 at any time. For purposes of this Section 5.07(b), the
amount of withdrawal liability of the Borrower and members of the Controlled
Group at any date shall be the aggregate present value of the amount claimed to
have been incurred less any portion thereof which the Borrower and members of
the Controlled Group have paid or as to which the Borrower reasonably believes,
after appropriate consideration of possible adjustments arising under Sections
4219 and 4221 of ERISA, it and members of the Controlled Group will have no
liability, provided that the Borrower shall obtain prompt written advice from
independent actuarial consultants supporting such determination. The Borrower
agrees (i) once in each year, beginning with 1996 to request and obtain a
current statement of the withdrawal liability of the Borrower and members of the
Controlled Group from each Multiemployer Plan, if any, and (ii) to transmit a
copy of such statement to the Administrative Agent and the Banks within fifteen
(15) days after the Borrower receives the same.
46
Section 5.08 Insurance. The Borrower will maintain, and will cause each
of its Subsidiaries to maintain (either in the name of the Borrower or in such
Subsidiary's own name), with financially sound and reputable insurance
companies, insurance on all its property in at least such amounts and against at
least such risks (including on all its property, and public liability and
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 5.09 Change in Fiscal Year. The Borrower will not change its
Fiscal Year without the consent of the Required Banks.
Section 5.10 Maintenance of Property. The Borrower shall, and shall
cause each Subsidiary to, maintain all of its properties and assets in good
condition, repair and working order, ordinary wear and tear excepted.
Section 5.11 Environmental Notices. The Borrower shall furnish to the
Banks and the Administrative Agent prompt written notice of all material
Environmental Liabilities, pending or, to the best knowledge of the Borrower,
overtly threatened Environmental Proceedings, Environmental Notices,
Environmental Judgments and Orders, and Environmental Releases at, on, in, under
or in any way affecting in any material manner the Properties or any adjacent
property, and all facts, events, or conditions that could reasonably be expected
to lead to any of the foregoing.
Section 5.12 Environmental Matters. The Borrower and its 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 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 the ordinary
course of business in material compliance with all applicable Environmental
Requirements.
Section 5.13 Environmental Release. The Borrower agrees that upon the
occurrence of an Environmental Release at or on any of the Properties it will
act immediately to investigate the extent of, and to the extent necessary to
satisfy any Environmental Requirements or the demand of any Environmental
Authority, take appropriate remedial action to eliminate, such Environmental
Release.
Section 5.14 Transactions with Affiliates. Neither the Borrower nor any
of its Subsidiaries shall enter into any transaction with any Affiliate of the
Borrower or such Subsidiary (which Affiliate is not the Borrower or a Wholly
Owned Subsidiary), except as permitted by law and pursuant to reasonable terms
which are no less favorable to the Borrower or such Subsidiary than would be
obtained in a comparable arm's length transaction with a Person which is not an
Affiliate or in the ordinary course of business as conducted as of the Closing
Date and except for transactions contemplated by (i) the Rights Agreement dated
as of August 23, 1990, between the Borrower and Wachovia, (ii) the Stockholders'
Agreement dated as of June 22, 1990, as amended, among the Borrower, Xxxxxx
Xxxxxxxxx and Xxxxxxx Xxxxx, or (iii) the Stockholders' Agreement dated as of
April 30, 1991, among the Borrower and Xxxxxxx Xxxxx, as amended.
47
Section 5.15 Investments. Neither the Borrower nor any of its
Subsidiaries shall make Investments in any Person except (i) existing
Investments described in Schedule 5.15, (ii) loans or advances to employees not
exceeding $1,000,000 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; (iii) deposits required by landlords,
government agencies or public utilities; (iv) Investments in direct obligations
of the United States Government maturing within one year, (v) Investments in
certificates of deposit issued by a commercial bank whose credit is satisfactory
to the Administrative Agent, (vi) Investments in commercial paper rated A1 or
the equivalent thereof by Standard & Poor's Rating Group, a division of
XxXxxx-Xxxx, Inc. or P1 or the equivalent thereof by Xxxxx'x Investors Service,
Inc. and in either case maturing within 6 months after the date of acquisition,
(vii) Investments in 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 Standard & Poor's Rating Group and Aa or the equivalent thereof by
Xxxxx'x Investors Service, Inc., (viii) Investments in the Borrower, any
Guarantor or any Significant Direct Foreign Subsidiary and Investments made in
the ordinary course of business by a Foreign Subsidiary in another Foreign
Subsidiary, (ix) loans and advances to Subsidiaries which are evidenced by
Pledged Notes, (x) Investments in a Receivables Subsidiary pursuant to a
Receivables Securitization Program, (xi) Investments consisting of acquisitions
of stock or assets of any Person which is in the same or a similar line of
business to that of the Borrower (including, without limitation, manufacturing,
sales, marketing, distribution or other activities relating to components or
end-products used or produced in the textile, fabric, garment or apparel
industries) and which, as a result of such acquisition, becomes a Subsidiary and
executes a Guaranty and Foreign Stock Pledge Agreements, as applicable (provided
that the Borrower can demonstrate pro forma compliance with any such Investments
exceeding $25,000,000), (xii) Investments in the infrastructure project in
Tamaulipas, Mexico in an aggregate amount not exceeding $12,500,000, (xiii)
other Investments in Non-Significant Foreign Subsidiaries in an aggregate amount
which, together with Investments not otherwise permitted by this Section, do not
exceed 12.5% of Consolidated Tangible Net Worth and (xiv) other Investments in
an aggregate amount which does not exceed 5% of Consolidated Tangible Net Worth;
provided that after giving effect to the making of any Investments permitted by
clauses (xii), (xiii) and (xiv) of this Section, if there are any Loans
outstanding at that time, no Default shall be in existence or be created
thereby.
Section 5.16 Liens. Neither the Borrower nor any Consolidated
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) (i) Liens in favor of the Collateral Agent pursuant to the
Security Documents and (ii) Liens existing on the date of this
Agreement securing Debt outstanding on the date of this Agreement in an
aggregate principal amount not exceeding $500,000;
(b) any Lien existing on any specific fixed asset of any
corporation at the time such corporation becomes a Consolidated
Subsidiary and not created in contemplation of such event;
48
(c) 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 Consolidated Subsidiary and not created in
contemplation of such event;
(d) any Lien existing on any specific fixed asset prior to the
acquisition thereof by the Borrower or a Consolidated Subsidiary and
not created in contemplation of such acquisition;
(e) Liens securing Debt owing by any Subsidiary to the
Borrower;
(f) Liens on Receivables Program Assets pursuant to a
Receivables Securitization Program;
(g) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing paragraphs of this Section, provided that (i) such
Debt is not secured by any additional assets, and (ii) the amount of
such Debt secured by any such Lien is not increased;
(h) Liens incidental to the conduct of its business or the
ownership of its assets (including, without limitation, and so long as
they are Permitted Encumbrances if they affect Collateral, landlord
liens and statutory liens of carriers, warehousemen, mechanics,
materialmen and other liens imposed by law, created in the ordinary
course of business for amounts not yet due or which are being contested
in good faith by appropriate proceedings or with respect to which
adequate reserves under GAAP are being maintained, and which were not
incurred in connection with the borrowing of money) 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;
(i) any Lien on Margin Stock; and
(j) Liens not otherwise permitted by the foregoing paragraphs
of this Section securing Debt (other than indebtedness represented by
the Notes, but including any Factor Advances) in an aggregate principal
amount at any time outstanding not to exceed 10% of Consolidated
Tangible Net Worth.
Section 5.17 Adjusted Interest Coverage Ratio. The Adjusted Interest
Coverage Ratio for the Fiscal Quarter just ended and the 3 immediately preceding
Fiscal Quarters shall at no time be less than (i) from the Closing Date through
and including the first Fiscal Quarter of the 2001 Fiscal Year, 1.05 to 1.00,
(ii) from and including the second Fiscal Quarter of the 2001 Fiscal Year
through and including the third Fiscal Quarter of the 2001 Fiscal Year, 1.25 to
1.0, (iii) from and including the fourth Fiscal Quarter of the 2001 Fiscal Year
through and including the third Fiscal Quarter of the 2002 Fiscal Year, 1.75 to
1.0 and (iv) thereafter, 2.50 to 1.00.
Section 5.18 Restricted Payments. The Borrower will not declare or make
any Restricted Payment during any Fiscal Year unless, after giving effect
thereto, the aggregate of all Restricted Payments declared or made during such
Fiscal Year does not exceed $10,000,000 and no Default shall be in existence or
be created thereby.
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Section 5.19 Leverage Ratio. The Leverage Ratio for the Fiscal Quarter
just ended and the immediately preceding 3 Fiscal Quarters shall at all times be
less than (i) from the Closing Date through and including the second Fiscal
Quarter of the 2000 Fiscal Year, 3.65 to 1.00, (ii) during the third Fiscal
Quarter of the 2000 Fiscal Year, 3.50 to 1.0, (iii) from and including the
fourth Fiscal Quarter of the 2000 Fiscal Year through and including the third
Fiscal Quarter of the 2001 Fiscal Year, 3.00 to 1.0, (iv) from and including the
fourth Fiscal Quarter of the 2001 Fiscal Year through and including the third
Fiscal Quarter of the 2002 Fiscal Year, 2.75 to 1.0 and (v) thereafter, 2.50 to
1.00.
Section 5.20 Minimum Consolidated Tangible Net Worth. Consolidated
Tangible Net Worth will at no time be less than $245,000,000 plus the sum of (i)
50% of the cumulative Reported Net Income of the Borrower and its Consolidated
Subsidiaries during any period after the Fiscal Quarter ending April 2, 2000
(taken as one accounting period), calculated quarterly at the end of each Fiscal
Quarter but excluding from such calculations of Reported Net Income for purposes
of this clause (i), any Fiscal Quarter in which the Reported Net Income of the
Borrower and its Consolidated Subsidiaries is negative, (ii) 100% of the
cumulative Net Proceeds of Capital Stock received during any period after the
Fiscal Quarter ending April 2, 2000, calculated quarterly at the end of each
Fiscal Quarter, and (iii) 100% of any equity resulting from the conversions of
any Debt of the Borrower or its Consolidated Subsidiaries.
Section 5.21 Significant Domestic Subsidiaries to Become Guarantors;
Release of Guarantors to be Sold.
(a) In the event any Subsidiary (whether existing on the
Closing Date or acquired or created thereafter), other than a Receivables
Subsidiary, is or becomes a Significant Domestic Subsidiary, then (1) within 10
Domestic Business Days after the Borrower becomes aware that it is a Significant
Domestic Subsidiary, it must so notify the Administrative Agent, and (ii) within
10 Domestic Business Days after giving such notice, such Significant Domestic
Subsidiary must: (A) become a Guarantor by (x) executing and delivering to the
Administrative Agent a counterpart of the Guaranty and a counterpart of the
Contribution Agreement, thereby becoming a party to each of them, (y) delivering
to the Administrative Agent an opinion of counsel to such Subsidiary
substantially in the form of Exhibit B-1, but limited to such Significant
Domestic Subsidiary, and excluding paragraph 2 thereof, and (z) delivering to
the Administrative Agent documents pertaining to such Significant Domestic
Subsidiary reasonably requested by the Administrative Agent of the types
described in paragraph (f) of Section 3.01; and (B) execute and deliver such
Security Documents pursuant to Section 5.25(b) as it would have been required to
execute pursuant thereto if it had been a Guarantor on the Closing Date.
If at the end of any Fiscal Quarter the portion of Consolidated
Operating Income contributed by the Borrower, the Guarantors and the Significant
Direct Foreign Subsidiaries is less than 90% of the total Consolidated Operating
Income, then: (I) the Borrower will notify the Administrative Agent and the
Banks thereof, which notice shall include a summary showing the portion of
Consolidated Operating Income contributed by the Borrower, each Guarantor and
the Significant Direct Foreign Subsidiaries; (II) within 10 days, designate as a
Significant Domestic Subsidiary or Significant Direct Foreign Subsidiary, as
applicable, one or more Domestic Subsidiaries and/or Direct Foreign Subsidiaries
which otherwise would not be a Significant Domestic Subsidiary or a Significant
Direct Foreign Subsidiary (each a "Newly Designated Significant Subsidiary"), so
50
that, taking into account the portion of Consolidated Operating Income
contributed by each such Newly Designated Significant Subsidiary, such minimum
90% level will be achieved (which designation shall show, for each such Newly
Designated Significant Subsidiary, whether it is a Domestic Subsidiary or a
Direct Foreign Subsidiary and the portion of Consolidated Operating Income
contributed by it), and (III) within 10 Domestic Business Days after making such
designation, cause (x) each such Newly Designated Significant Subsidiary which
is a Domestic Subsidiary to become a Guarantor and execute and deliver the
Security Documents as provided above in this Section 5.21(a), and (y) the owner
of the capital stock of each such Newly Designated Significant Subsidiary which
is a Direct Foreign Subsidiary to comply with the provisions of Section 5.22(a)
with respect to the stock of such Direct Foreign Subsidiary.
(b) In the case of any Guarantor the stock of which is to be
sold, such Guarantor may submit to the Administrative Agent a request for a
release of its obligations under the Guaranty, and such Guarantor shall be
entitled to obtain from the Administrative Agent a written release from the
Guaranty, a written termination of all of its obligations under all Security
Documents executed by it and a written release, a termination of all Liens under
all such Security Documents, and the Borrower shall be entitled to obtain a
written release from the Domestic Stock Pledge Agreement with respect to the
capital stock of such Guarantor; provided that it can demonstrate to the
reasonable satisfaction of the Administrative Agent that (A) the provisions of
Section 5.05 will not be breached by such sale, (B) all loans to such Guarantor
from the Borrower or any other Guarantor have been repaid in full, (C) the net
purchase price to be realized by the seller of such Guarantor for such sale will
be not less than 100% of the fair market value of such Guarantor, as determined
in good faith by the Borrower's board of directors, and (D) no Event of Default
is in existence or will be caused as a result of such sale, and upon obtaining
such written release, it shall no longer be a Guarantor for any purpose
hereunder or under the Guaranty.
Section 5.22 Pledge of Stock of Significant Direct Foreign
Subsidiaries; Release with respect to Certain Guarantors to be Sold.
(a) In the event any Domestic Subsidiary (whether existing on
the Closing Date or acquired thereafter) owns or acquires a Significant Direct
Foreign Subsidiary, then (i) within 10 Domestic Business Days of such entity
becoming a Significant Direct Foreign Subsidiary, the Borrower must so notify
the Administrative Agent, and (ii) within 10 Domestic Business Days after giving
such notice, such Domestic Subsidiary must execute and deliver a Foreign Stock
Pledge Agreement with respect to 65% of the capital stock of such Significant
Direct Foreign Subsidiary together with the powers of attorney pursuant thereto
and evidence of registration of the pledge or such other document or other
writing which the Administrative Agent may reasonably require with respect
thereto. In addition, the foregoing shall apply to any Direct Foreign Subsidiary
which is designated as a Significant Direct Foreign Subsidiary, either
voluntarily or pursuant to the second paragraph of Section 5.21(a).
(b) In the case of any Guarantor the stock of which is to be
sold, if such Guarantor has executed a Foreign Stock Pledge Agreement with
respect to any Significant Direct Foreign Subsidiary which will continue to be a
subsidiary thereof after such sale, or if any Significant Direct Foreign
Subsidiary is to be sold, with respect to such Significant Direct Foreign
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Subsidiary, such Guarantor may submit to the Administrative Agent a request for
a release of such Foreign Stock Pledge Agreement, and such Guarantor shall be
entitled to obtain from the Administrative Agent a written release from such
Foreign Stock Pledge Agreement with respect to such Significant Direct Foreign
Subsidiary, provided that it can demonstrate to the reasonable satisfaction of
the Administrative Agent that the conditions to the release of such Guarantor
from the Guaranty set forth in Section 5.21(b) have been satisfied.
Section 5.23 Factoring Arrangements. The Borrower and its Subsidiaries
shall not have any factoring arrangements, except those which comply with the
provisions of this Section 5.23 ("Permitted Factoring Arrangements"): (i) the
aggregate face amount off factored accounts receivable outstanding at any time
shall not exceed $30,000,000; (ii) any Factor Advances under a Permitted
Factoring Arrangement shall be included in the computation of Debt for purposes
of Section 5.24(B)(viii) and may be secured by (x) accounts receivable which are
not sold and have not been identified for sale to such factor ("Non-Factored
Accounts"), so long as such factor has expressly subordinated its Lien on such
Non-Factored Accounts to the Lien of the Collateral Agent, pursuant to a
subordination provision acceptable to the Administrative Agent, which
subordinated Liens shall be included in the computation of Liens permitted by
Section 5.16(j), and (y) accounts which have been identified for sale to such
factor pursuant to the factoring arrangement but which have not yet been sold
("Identified Accounts"), which Liens shall be included in the computation of
Liens permitted by Section 5.16(j) until they are actually sold pursuant to such
factoring arrangement, but need not be subordinated pursuant to the foregoing
(and any Non-Factored Accounts which become Identified Accounts shall no longer
be subject to such subordination provisions). With respect to each Permitted
Factoring Arrangement, there shall be a period of at least 60 consecutive days
in any 12 month period during which there are not Factor Advances outstanding.
Upon the actual sale of Identified Accounts pursuant to such factoring
arrangement (such sold accounts being "Factored Accounts"), the Lien of the
Collateral Agent shall be automatically released pursuant to the Security
Agreement.
Section 5.24 Additional Debt; Debt of Receivables Subsidiary. The
Borrower shall not incur or permit to exist, or permit any Consolidated
Subsidiary other than the Receivables Subsidiary to incur or permit to exist,
any Debt other than:
(A) Debt under credit facilities in Mexico in the aggregate amount not
exceeding the Dollar equivalent of 66,000,000 Mexican pesos, calculated based on
the exchange rate as of the Closing Date, debt under credit facilities in the
United Kingdom in the aggregate amount not exceeding the Dollar equivalent of
5,000,000 British pounds sterling, calculated based on the exchange rate as of
the Closing Date, term facilities to be entered into in Portugal in the
aggregate amount not exceeding the Dollar equivalent of 900,000,000 Portuguese
escudos, calculated based on the exchange rate as of the Closing Date and other
Debt under lines of credit with a term less than 1 year not exceeding
$10,000,000; and
(B) (i) Debt in existence on the Closing Date, and extensions,
renewals, refinancings or refundings thereof (provided that the amount of such
Debt is not increased); (ii) the Debt under this Agreement; (iii) Debt permitted
to be secured by Liens permitted by Section 5.16; (iv) Debt of the types
described in clause (vii) of the definition of Debt which is incurred in the
ordinary course of business in connection with the sale or purchase of goods or
to assure performance of an obligation to a utility or a governmental entity or
52
a worker's compensation obligation; (v) Receivables Program Obligations; (vi)
Debt permitted by Section 5.15; (vii) obligations to reimburse any bank or other
Person in respect of amounts paid or to be paid under any irrevocable standby
letter of credit (excluding commercial documentary letters of credit issued in
support of trade payables arising from the import of goods) in an aggregate
amount at any time for all such standby letters of credit not exceeding
$5,000,000 and (viii) other Debt (including amounts outstanding under committed
lines of credit and any Factor Advances) with a term greater than 1 year in an
aggregate amount outstanding at any time which, together with Debt under lines
of credit described in clause (A) above, does not exceed $50,000,000. The
Borrower shall not permit the Receivables Subsidiary to incur any Debt or other
liabilities other than in connection with the Receivables Securitization
Program.
Section 5.25 Collateral.
(a) All manufacturing Plants and Other Real Property of the
Borrower and each Guarantor are listed on Schedule 5.25, which shows, as to each
Plant and Other Real Property: (i) the city, town or other local jurisdiction,
and county and state of its location; (ii) whether the land on which such Plant
or Other Real Property is located is owned or leased by the Borrower or a
Guarantor, and if leased, the name and address of the owner; (iii) all Liens on
the Plant or Other Real Property; and (iv) the name, address and type of
interest of any Third Party whose consent is required in connection with the
execution, delivery, recording and performance of a Mortgage as to such Plant or
Other Real Property, and whether such consent has been obtained. Attached as
Exhibit B to the Security Agreement is a list of Permitted Encumbrances based on
lien search reports received by the Administrative Agent as of the Closing Date.
To the extent liens search reports ordered on behalf of the Administrative Agent
have not been received as of the Closing Date, such Exhibit B shall be modified
after all such lien search reports have been received to include additional
Permitted Encumbrances reasonably acceptable to the Administrative Agent based
on such additional lien search reports. If the Borrower or any Guarantor opens
any additional manufacturing plants or acquires any other real property, it
shall promptly furnish to the Administrative Agent, the Collateral Agent and the
Secured Parties a supplement to Schedule 5.25 including such additional Plant or
Other Real Property and furnish to the Collateral Agent a Mortgage and
appropriate UCC-1 financing statements requested by the Administrative Agent
with respect to each such Plant and (if requested by the Administrative Agent),
each such Other Real Property which is designated as a Designated Other Real
Property.
(b) It is the intent of the parties hereto that the Secured
Obligations shall be secured by the Collateral subject to the provisions of
Section 9.19 regarding the release of the Receivables Program Assets and the
provisions of the Intercreditor Agreement. On the Closing Date, the Borrower and
the Guarantors will execute and deliver to the Collateral Agent the Security
Documents (other than the Mortgages) and the other documents described in
Section 3.01(g) and the Intercreditor Agreement (which also shall be executed by
the Collateral Agent and each of the Secured Parties). Within 45 days after the
Closing Date (or, as to any Other Real Property which is not Designated Other
Real Property on the Closing Date, after the date the Administrative Agent
notifies the Borrower of such designation), the Borrower and the Guarantors, as
applicable, shall deliver to the Collateral Agent copies of any existing owner's
title insurance policies, surveys and environmental inspection reports, as to
such Plant or Designated Other Real Property which the Borrower or any Guarantor
has in its possession. Within 90 days after the Closing Date (or, as to any
53
Other Real Property which is not Designated Other Real Property on the Closing
Date, after the date the Administrative Agent notifies the Borrower of such
designation), the Borrower and the Guarantors, as applicable, shall execute (as
applicable) and deliver to the Collateral Agent: (i) with respect to the
Security Agreement, such agreements with Third Parties (including
acknowledgements, lien waivers and agreements as to access to personal property
from any warehouse owner or processor where any of such personal property may be
located) as the Collateral Agent may reasonably require, and the Borrower agrees
to use commercially reasonable efforts to obtain such Third Party agreements;
(ii) the Mortgages and UCC-1 financing statements relating to the fixtures
located at the premises described therein as to all Plants and all Designated
Other Real Property; provided, however, that as to any Mortgage on a leasehold,
the Borrower agrees that it shall use commercially reasonable efforts to obtain
any required consent; and (iii) all other Real Property Documentation with
respect thereto (including a mortgagee title policy, a current survey and an
environmental inspection report) and related lien searches; provided, however,
that if a "Phase 2 report is recommended in any Phase 1 report as to any Plant
or Designated Other Property or the Administrative Agent determines in its
reasonable judgment, based on such Phase 1 report, that a Phase 2 report should
be obtained, such Phase 2 report shall be obtained and furnished as soon as
reasonably practicable after such 90 day period ends, if it cannot be obtained
and furnished within such 90 day period.. The Collateral Agent shall file for
record, as applicable, each of the Mortgages (and related UCC-1 financing
statements pertaining to related fixtures) as to all of the Plants and
Designated Other Real Property and the Borrower shall pay all recording fees and
costs and stamp, intangible or other taxes payable in connection with the filing
for record of the Mortgages, UCC-1 financing statements and the Patent
Assignment (collectively, the "Recording Expenses").
ARTICLE VI
DEFAULTS
Section 6.01 Events of Default. If 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 shall fail to pay any interest on any Loan within 5
Domestic Business Days after such interest shall become due, or shall
fail to pay any fee or other amount payable hereunder within 5 Domestic
Business Days after such fee or other amount becomes due; or
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.02(ii), 5.03 to 5.06, inclusive, or Sections
5.15 through 5.20, inclusive; or
(c) the Borrower 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 other
Loan Document and such failure shall not have been cured within 30 days
(or, in the case of the covenant contained in Section 5.01(e), 5
Domestic Business Days) after the earlier to occur of (i) written
notice thereof has been given to the Borrower by the Administrative
Agent at the request of any Bank or (ii) a responsible officer of the
Borrower otherwise becomes aware of any such failure; or
54
(d) any representation, warranty, certification or statement
made by the Borrower in Article IV of this Agreement or in any
certificate, financial statement or other document delivered pursuant
to this Agreement 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 in an aggregate amount outstanding in excess
of $5,000,000 (other than the Notes) 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 of the Borrower or any Subsidiary
in an aggregate amount outstanding in excess of $5,000,000 or the
termination of the commitments with respect to any such Debt
(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 (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 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 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 member of the Controlled Group,
any plan administrator or any combination of the foregoing which
results in a liability of the Borrower in an aggregate amount of
$3,000,000 or more; 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
55
4219(c)(5) of ERISA and such proceeding shall not have been dismissed
within 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 which results in a liability
of the Borrower in an aggregate amount of $3,000,000 or more; or
(j) one or more judgments or orders for the payment of money
in an aggregate amount in excess of $1,000,000 shall be rendered
against the Borrower or any Subsidiary and such judgment or order shall
continue unsatisfied and unstayed for a period of 30 days; or
(k) a federal tax lien shall be filed against the Borrower or
any Subsidiary under Section 6323 of the Code or a lien of the PBGC
shall be filed against the Borrower or any Subsidiary under Section
4068 of ERISA and in either case such lien shall remain undischarged
for a period of 25 days after the date of filing; or
(l) (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 20% 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);
then, and in every such event, (i) the Administrative Agent shall, if requested
by the Required Banks, by notice to the Borrower terminate the Commitments and
they (and the commitment of Wachovia to make any Swing Loan) shall thereupon
terminate, (ii) the Administrative Agent shall, if requested by the Required
Banks, by notice to the Borrower declare the Notes (together with accrued
interest thereon), and all other amounts payable hereunder and under the other
Loan Documents, to be, and the Notes, including the Swing Loan Note (together
with accrued interest thereon), and all other amounts payable hereunder and
under the other Loan Documents 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 accrued and unpaid
interest which, if elected by the Required Banks pursuant to Section 2.05(f),
shall be at the Default Rate accruing on the principal amount thereof from and
after the date of such Event of Default; 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 Administrative Agent
or the Banks, the Commitments shall thereupon terminate and the Notes (together
with accrued interest thereon) and all other amounts payable hereunder and under
the other Loan 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
accrued and unpaid interest thereon, which, if elected by the Required Banks
pursuant to Section 2.05(f), shall be at the Default Rate accruing on the
principal amount thereof from and after the date of such Event of Default and
(iii) the Collateral Agent shall take such actions as are directed by the
56
"Required Secured Parties" (as defined in the Intercreditor Agreement) pursuant
to Section 11 of the Intercreditor Agreement, and apply any proceeds of the
Collateral as provided in Section 12 of the Intercreditor Agreement.
Notwithstanding the foregoing, the Administrative 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 Banks.
Section 6.02 Notice of Default. The Administrative Agent shall give
notice to the Borrower of any Default under Section 6.01(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE ADMINISTRATIVE AGENT
Section 7.01 Appointment; Powers and Immunities.(a) Each Bank hereby
irrevocably appoints and authorizes the Administrative Agent to act as its
Administrative Agent hereunder and under the other Loan Documents with such
powers as are specifically delegated to the Administrative Agent by the terms
hereof and thereof, together with such other powers as are reasonably incidental
thereto. The Administrative Agent: (a) shall have no duties or responsibilities
except as expressly set forth in this Agreement and the other Loan Documents,
and shall not by reason of this Agreement or any other Loan Document be a
trustee for any Bank; (b) shall not be responsible to the Banks for any
recitals, statements, representations or warranties contained in this Agreement
or any other Loan Document, or in any certificate or other document referred to
or provided for in, or received by any Bank under, this Agreement or any other
Loan Document, or for the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or any other
document referred to or provided for herein or therein or for any failure by the
Borrower to perform any of its obligations hereunder or thereunder; (c) shall
not be required to initiate or conduct any litigation or collection proceedings
hereunder or under any other Loan Document except to the extent requested by the
Required Banks, and then only on terms and conditions satisfactory to the
Administrative Agent, and (d) shall not be responsible for any action taken or
omitted to be taken by it hereunder or under any other Loan 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. The Administrative 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 VII are solely for the benefit of the Administrative Agent and the
Banks, and the Borrower shall not 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 Loan Documents, the Administrative Agent
shall act solely as agent of the Banks 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 the Administrative Agent shall be
ministerial and administrative in nature, and the Administrative Agent shall not
have by reason of this Agreement or any other Loan Document a fiduciary
relationship in respect of any Bank.
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(b) Each Lender hereby designates First Union National Bank as
the Syndication Agent and Bank One, N.A. as the Documentation Agent. The
Syndication Agent and the Documentation Agent, in such capacity, shall have no
duties or obligations whatsoever under this Agreement or any other Loan Document
or any other document or any matter related hereto and thereto, but shall
nevertheless be entitled to all the indemnities and other protection afforded to
the Agent under this Article VII.
Section 7.02 Reliance by Administrative Agent. The Administrative 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 the Administrative Agent.
As to any matters not expressly provided for by this Agreement or any other Loan
Document, the Administrative 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 Banks, and such instructions of the
Required Banks in any action taken or failure to act pursuant thereto shall be
binding on all of the Banks.
Section 7.03 Defaults. The Administrative Agent shall not be deemed to
have knowledge of the occurrence of a Default or an Event of Default (other than
the nonpayment of principal of or interest on the Loans) unless the
Administrative Agent has received notice from a Bank or the Borrower specifying
such Default or Event of Default and stating that such notice is a "Notice of
Default". In the event that the Administrative Agent receives such a notice of
the occurrence of a Default or an Event of Default, the Administrative Agent
shall give prompt notice thereof to the Banks. The Administrative Agent shall
give each Bank prompt notice of each nonpayment of principal of or interest on
the Loans whether or not it has received any notice of the occurrence of such
nonpayment. The Administrative Agent shall (subject to Section 9.06) take such
action hereunder with respect to such Default or Event of Default as shall be
directed by the Required Banks, provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Banks.
Section 7.04 Rights of Administrative Agent as a Bank and its
Affiliates. With respect to the Loans made by the Administrative Agent and any
Affiliate of the Administrative Agent in its capacity as a Bank hereunder, the
Administrative Agent in its capacity as a Bank hereunder and any Affiliate of
the Administrative Agent shall have the same rights and powers hereunder as any
other Bank and may exercise the same as though it were not acting as the
Administrative Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include Wachovia in its individual capacity and any
Affiliate of the Administrative Agent in its individual capacity. The
Administrative Agent and any Affiliate of the Administrative Agent may (without
having to account therefor to any Bank) 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 the Bank were not acting
as the Administrative Agent, and the Administrative Agent and any Affiliate of
the Administrative Agent may accept fees and other consideration from the
Borrower (in addition to any agency fees and arrangement fees heretofore agreed
to between the Borrower and the Administrative Agent) for services in connection
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with this Agreement or any other Loan Document or otherwise without having to
account for the same to the Banks.
Section 7.05 Indemnification. Each Bank severally agrees to indemnify
the Administrative Agent, to the extent the Administrative Agent shall not have
been reimbursed by the Borrower, ratably in accordance with its Commitment, for
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including, without limitation, counsel fees
and disbursements) or disbursements of any kind and nature whatsoever which may
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of this Agreement or any other Loan 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 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, however that no Bank shall be liable for any of the foregoing to the
extent they arise from the gross negligence or wilful misconduct of the
Administrative Agent. If any indemnity furnished to the Administrative Agent for
any purpose shall, in the opinion of the Administrative Agent, be insufficient
or become impaired, the Administrative 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 CONSEQUENTIAL DAMAGES. THE ADMINISTRATIVE AGENT SHALL NOT
BE RESPONSIBLE OR LIABLE TO ANY BANK, 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 LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
Section 7.07 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 9.08(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 7.08 Nonreliance on Administrative Agent and Other Banks. Each
Bank agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower and decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent or any other
Bank, 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 Loan Documents. The
Administrative Agent shall not be required to keep itself (or any Bank) informed
as to the performance or observance by the Borrower of this Agreement or any of
the other Loan 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
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other Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Administrative Agent
hereunder or under the other Loan Documents, the Administrative Agent shall not
have any duty or responsibility to provide any Bank 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 the Administrative Agent.
Section 7.09 Failure to Act. Except for action expressly required of
the Administrative Agent hereunder or under the other Loan Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction by the Banks of their indemnification obligations
under Section 7.05 against any and all liability and expense which may be
incurred by the Administrative Agent by reason of taking, continuing to take, or
failing to take any such action.
Section 7.10 Resignation or Removal of Administrative Agent. Subject to
the appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Banks and the Borrower and the Administrative Agent may be removed at any
time with or without cause by the Required Banks. Upon any such resignation or
removal, the Required Banks shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment within
30 days after the retiring Administrative Agent's notice of resignation or the
Required Banks' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent. Any successor Administrative Agent shall be a bank which
has a combined capital and surplus of at least $500,000,000. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII 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 Administrative Agent hereunder.
ARTICLE VIII
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:
(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
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(b) the Required Banks advise the Administrative Agent that
the London Interbank Offered Rate or IBOR, as the case may be, as
determined by the Administrative Agent will not adequately and fairly
reflect the cost to such Banks of funding the relevant type of Fixed
Rate Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make the type of Fixed Rate Loans specified in such
notice shall be suspended. Unless the Borrower notifies the Administrative Agent
at least 2 Domestic Business Days before the date of any Borrowing of such type
of Fixed Rate 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 Bank (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 Bank (or its Lending
Office) to make, maintain or fund its Euro-Dollar Loans or Foreign Currency
Loans and such Bank shall so notify the Administrative Agent, the Administrative
Agent shall forthwith give notice thereof to the other Banks and the Borrower,
whereupon until such Bank notifies the Borrower and the Administrative Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans or Foreign Currency Loans, as
the case may be, shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section, such Bank 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 Bank, be otherwise disadvantageous
to such Bank. If such Bank shall determine that it may not lawfully continue to
maintain and fund any of its outstanding Euro-Dollar Loans or Foreign Currency
Loans, as the case may be, 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 or Foreign Currency Loans, as the case may be, of such
Bank, together with accrued interest thereon and any amount due such Bank
pursuant to Section 8.05(a). Concurrently with prepaying each such Euro-Dollar
Loan or Foreign Currency Loans, as the case may be, the Borrower shall borrow a
Base Rate Loan in an equal principal amount from such Bank (on which interest
and principal shall be payable contemporaneously with the related Euro-Dollar
Loans or Foreign Currency Loans, as the case may be, of the other Banks), and
such Bank 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 Bank (or its Lending Office) 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 (A) with respect to any Euro-Dollar Loan
any such requirement included in an applicable Euro-Dollar Reserve
Percentage and (B) with respect to any Foreign Currency Loan any such
requirement included in the applicable Adjusted IBOR Rate) against
assets of, deposits with or for the account of, or credit extended by,
any Bank (or its Lending Office); or
(ii) shall impose on any Bank (or its Lending Office) or on
the United States market for certificates of deposit or the London
interbank market any other condition affecting its Fixed Rate Loans,
its Notes or its obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Fixed Rate Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Notes with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Administrative Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank for
such increased cost or reduction.
(b) If any Bank shall have determined that after the date
hereof 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 Bank (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 Bank's capital as a consequence of its obligations
hereunder to a level below that which such Bank could have achieved but for such
adoption, change or compliance (taking into consideration such Bank's policies
with respect to capital adequacy) by an amount deemed by such Bank to be
material, then from time to time, within 15 days after demand by such Bank, the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such reduction.
(c) Each Bank 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 Bank 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 Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank 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
Bank may use any reasonable averaging and attribution methods.
(d) The provisions of this Section 8.03 (i) 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 and (ii) shall
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constitute a continuing agreement and shall survive the termination of this
Agreement and the payment in full or cancellation of the Notes.
Section 8.04 Base Rate Loans or Other Fixed Rate Loans Substituted for
Affected Fixed Rate Loans. If (i) the obligation of any Bank to make or maintain
any type of Fixed Rate Loans has been suspended pursuant to Section 8.02 or (ii)
any Bank has demanded compensation under Section 8.03, and the Borrower shall,
by at least 5 Euro-Dollar Business Days' or Foreign Currency Business Days, as
applicable, prior notice to such Bank through the Administrative Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank 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 Bank as
Euro-Dollar Loans or Foreign Currency Loans, as the case may be, shall
be made instead either (A) as Base Rate Loans, (B) if such suspension
or demand for compensation relates to Euro-Dollar Loans, but not
Foreign Currency Loans, as Foreign Currency Loans, or (C) if such
demand for compensation relates to Foreign Currency Loans, but not
Euro-Dollar Loans, as Euro-Dollar Loans, as the Borrower may elect in
the notice to such Bank through the Administrative Agent referred to
hereinabove (in all cases interest and principal on such Loans shall be
payable contemporaneously with the related Fixed Rate Loans of the
other Banks), and
(b) after each of Euro-Dollar Loans or Foreign Currency Loans,
as the case may be, has been repaid, all payments of principal which
would otherwise be applied to repay such Fixed Rate Loans shall be
applied to repay its Base Rate Loans instead.
Section 8.05 Compensation. Upon the request of any Bank, delivered to
the Borrower and the Administrative Agent, the Borrower shall pay to such Bank
such amount or amounts as shall compensate such Bank for any loss, cost or
expense incurred by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2,09, 2.10,
6.01, 8.02 or otherwise) of a Fixed Rate Loan on a date other than the last day
of an Interest Period for such Fixed Rate Loan; or
(b) any failure by the Borrower to borrow a Fixed Rate Loan on
the date for the Fixed Rate Borrowing of which such Fixed Rate Loan is a part
specified in the applicable Notice of Borrowing delivered pursuant to Section
2.02; or
(c) any failure by the Borrower to pay a Foreign Currency Loan
in the applicable Foreign Currency;
such compensation to include, without limitation, as applicable: (A) 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 Fixed Rate Loan
(or, in the case of a failure to prepay or borrow, the Interest Period for such
Fixed Rate Loan which would have commenced on the date of such failure to prepay
or borrow) at the applicable rate of interest for such Fixed Rate Loan provided
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for herein over (y) the amount of interest (as reasonably determined by such
Bank) such Bank would have paid on (i) deposits in Dollars of comparable amounts
having terms comparable to such period placed with it by leading banks in the
London interbank market (if such Fixed Rate Loan is a Euro-Dollar Loan), or (ii)
any deposit in a Foreign Currency of comparable amounts having terms comparable
to such period placed with it by lending banks in the applicable interbank
market for such Foreign Currency (if such Fixed Rate Loan is a Foreign Currency
Loan); or (B) any such loss, cost or expense incurred by such Bank in
liquidating or closing out any foreign currency contract undertaken by such Bank
in funding or maintaining such Fixed Rate Loan (if such Fixed Rate Loan is a
Foreign Currency Loan).
Section 8.06 Failure to Pay in Foreign Currency. If any Borrower is
unable for any reason to effect payment in a Foreign Currency as required by
this Agreement or if the Borrower shall default in the Foreign Currency, each
Bank may, through the Administrative Agent, require such payment to be made in
Dollars in the Dollar Equivalent amount of such payment. In any case in which
the Borrower shall make such payment in Dollars, the Borrower agrees to hold the
Banks harmless from any loss incurred by the Banks arising from any change in
the value of Dollars in relation to such Foreign Currency between the date such
payment became due and the date of payment thereof.
Section 8.07 Judgment Currency. If for the purpose of obtaining
judgment in any court or enforcing any such judgment it is necessary to convert
any amount due in any Foreign Currency into any other currency, the rate of
exchange used shall be the Administrative Agent's spot rate of exchange for the
purchase of the Foreign Currency with such other currency at the close of
business on the Foreign Currency Business Day preceding the date on which
judgment is given or any order for payment is made. The obligation of the
Borrower in respect of any amount due from it hereunder shall, notwithstanding
any judgment or order for a liquidated sum or sums in respect of amounts due
hereunder or under any judgment or order in any other currency or otherwise be
discharged only to the extent that on the Foreign Currency Business Day
following receipt by the Administrative Agent of any payment in a currency other
than the relevant Foreign Currency the Administrative Agent is able (in
accordance with normal banking procedures) to purchase the relevant Foreign
Currency with such other currency. If the amount of the relevant Foreign
Currency that the Administrative Agent is able to purchase with such other
currency is less than the amount due in the relevant Foreign Currency,
notwithstanding any judgment or order, the Borrower shall indemnify the Banks
for the shortfall.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, 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 appropriate confirmation is
received, (ii) if given by mail, 72 hours after such communication is deposited
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in the mails 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 II or
Article VIII shall not be effective until received.
Section 9.02 No Waivers. No failure or delay by the Administrative
Agent or any Bank in exercising any right, power or privilege hereunder or under
any Note or other Loan 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 9.03 Expenses; Documentary Taxes. The Borrower shall pay (i)
all reasonable out-of-pocket expenses of the Administrative Agent, including
reasonable fees and disbursements of special counsel for the Banks and the
Administrative Agent, in connection with the preparation of this Agreement and
the other Loan Documents any waiver or consent hereunder or thereunder or any
amendment hereof or thereof or any Default or alleged Default hereunder or
thereunder and (ii) if an Event of Default occurs, all reasonable out-of-pocket
expenses incurred by the Administrative Agent and the Banks, including
reasonable fees and disbursements of counsel, in connection with such Event of
Default and collection and other enforcement proceedings resulting therefrom,
including all reasonable out-of-pocket expenses incurred in enforcing this
Agreement and the other Loan Documents. The Borrower shall indemnify the
Administrative Agent and each Bank 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 Loan Documents. In addition to but
without duplication of the foregoing, the Borrower shall pay all Recording
Expenses.
Section 9.04 Indemnification. The Borrower shall indemnify the
Administrative Agent, the Banks 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 of the proceeds
of any extension of credit by any Bank hereunder or breach by the Borrower of
this Agreement or any other Loan Document or from any investigation, litigation
(including, without limitation, any actions taken by the Administrative Agent or
any of the Banks to enforce this Agreement or any of the other Loan Documents)
or other proceeding (including, without limitation, any threatened investigation
or proceeding) relating to the foregoing, and the Borrower shall reimburse the
Administrative Agent and each Bank, and each Affiliate thereof and their
respective directors, officers, employees and agents, upon demand for any
reasonable out-of-pocket expenses (including, without limitation, reasonable
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 to be
indemnified.
Section 9.05 Setoff; Sharing of Setoffs.
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(a) The Borrower hereby grants to the Administrative Agent and
each Bank a lien for all indebtedness and 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 the Administrative Agent or any such Bank or
otherwise in the possession or control of the Administrative Agent or any such
Bank for any purpose for the account or benefit of the Borrower and including
any balance of any deposit account or of any credit of the Borrower with the
Administrative Agent or any such Bank, whether now existing or hereafter
established hereby authorizing the Administrative Agent and each Bank at any
time or times following the occurrence and during the continuance of an Event of
Default with or without prior notice to apply such balances or any part thereof
to such of the indebtedness and obligations owing by the Borrower to the Banks
and/or the Administrative Agent then past due and in such amounts as they may
elect, and whether or not the collateral, if any, or the responsibility of other
Persons primarily, secondarily or otherwise liable may be deemed adequate. For
the purposes of this paragraph, all remittances and property shall be deemed to
be in the possession of the Administrative Agent or any such Bank as soon as the
same may be put in transit to it by mail or carrier or by other bailee.
(b) Each Bank agrees that if it shall, by exercising any right
of setoff or counterclaim or resort to collateral security or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest owing
with respect to the Note held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of all principal
and interest owing with respect to the Note held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks owing to such other Banks,
and such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
owing to such other Banks shall be shared by the Banks pro rata; provided that
(i) nothing in this Section shall impair the right of any Bank 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 Notes, and (ii) if all or any portion of such payment
received by the purchasing Bank is thereafter recovered from such purchasing
Bank, such purchase from each other Bank shall be rescinded and such other Bank
shall repay to the purchasing Bank the purchase price of such participation to
the extent of such recovery together with an amount equal to such other Bank's
ratable share (according to the proportion of (x) the amount of such other
Bank's required repayment to (y) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note, 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 the Borrower in the amount of such
participation.
Section 9.06 Amendments and Waivers.
(a) Any provision of this Agreement, the Notes, the Guaranty,
the Contribution Agreement or any other Loan Documents may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Borrower or the Guarantors, as applicable, and the Required Banks (and, if the
rights or duties of the Administrative Agent are affected thereby, by the
66
Administrative Agent); provided that, no such amendment or waiver shall, unless
signed by all Banks, (i) change the Commitment of any Bank or subject any Bank
to any additional obligation, (ii) reduce the principal of or rate of interest
on any Loan or any fees (other than fees payable to the Administrative Agent)
hereunder, (iii) extend the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder, (iv) reduce 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 Banks, which shall be required for the Banks 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, (vii) release or substitute all or any substantial part
of the Collateral held as security for the Loans or all or any substantial part
of any property described in any Security Document, except as expressly provided
by Section 5.05, 5.21(b), 5.22(b), 5.23 and 9.19 or in any other provision of
the Loan Documents, (viii) waive or amend the provisions of Section 5.25 or (ix)
release any Guarantee given to support payment of the Loans, except as expressly
provided in Section 5.21.
(b) Other than with the Administrative Agent, 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 unless each Bank
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 each
Bank forthwith following the date on which the same shall have been executed and
delivered by the requisite percentage of Banks. 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 Bank (in its
capacity as such) as consideration for or as an inducement to the entering into
by such Bank 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 Banks.
Section 9.07 No Margin Stock Collateral. Each of the Banks represents
to the Administrative Agent and each of the other Banks 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 9.08 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 the Borrower may not assign or otherwise transfer any of
its rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (each
a "Participant") participating interests in any Loan owing to such Bank, any
Note held by such Bank, any Commitment hereunder or any other interest of such
Bank hereunder. In the event of any such sale by a Bank of a participating
interest to a Participant, such Bank's obligations under this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower and the Administrative Agent shall
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continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. In no event shall a Bank
that sells a participation be obligated to the Participant to take or refrain
from taking any action hereunder except that such Bank 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 Bank selling a participating interest in any Loan,
Note, Commitment or other interest under this Agreement, shall, within 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 VIII with respect to its participation in Loans outstanding from time to
time.
(c) Any Bank may at any time assign to one or more banks or
financial institutions (each an "Assignee") all, or in the case of its
Syndicated Loans and Commitments, a proportionate part of all its Syndicated
Loans and Commitments, of its rights and obligations under this Agreement, the
Notes and the other Loan Documents, and such Assignee shall assume all such
rights and obligations, pursuant to an Assignment and Acceptance, executed by
such Assignee, such transferor Bank and the Administrative Agent (and, in the
case of an Assignee that is not then a Bank or a Related Fund or an Affiliate of
a Bank, subject to clauses (iii) below, by the Borrower); provided that (i) no
interest may be sold by a Bank pursuant to this paragraph (c) unless the
Assignee shall agree to assume ratably equivalent portions of the transferor
Bank's Commitment, (ii) if a Bank 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 $5,000,000
(except that there shall be no such minimum if the assignment is to any Bank or
a Related Fund or Affiliate of any Bank), and (iii) except during the
continuance of a Default, no interest may be sold by a Bank pursuant to this
paragraph (c) to any Assignee that is not then a Bank (or an Affiliate of a
Bank) without the consent of the Borrower and the Administrative Agent, which
consent shall not be unreasonably withheld. Upon (A) execution of the Assignment
and Acceptance by such transferor Bank, such Assignee, the Administrative Agent
and (if applicable) the Borrower, (B) delivery of an executed copy of the
Assignment and Acceptance to the Borrower and the Administrative Agent, (C)
payment by such Assignee to such transferor Bank of an amount equal to the
purchase price agreed between such transferor Bank and such Assignee, and (D)
payment of a processing and recordation fee of $3,500 to the Administrative
Agent, such Assignee shall for all purposes be a Bank party to this Agreement
and shall have all the rights and obligations of a Bank 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 Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by the Borrower, the Banks or the Administrative Agent
shall be required. Upon the consummation of any transfer to an Assignee pursuant
68
to this paragraph (c), the transferor Bank, the Administrative Agent and the
Borrower shall make appropriate arrangements so that, if required, a new Note is
issued each of such Assignee and such transferor Bank and such transferor Bank.
(d) Subject to the provisions of Section 9.09, the Borrower
authorizes each Bank to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial information in such Bank's possession concerning the Borrower which
has been delivered to such Bank by the Borrower pursuant to this Agreement or
which has been delivered to such Bank by the Borrower in connection with such
Bank's credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater
payment under Section 2.12(d) or Section 8.03 than the transferor Bank 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 8.02 or 8.03 requiring such Bank 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 9.08 to the contrary
notwithstanding, any Bank may assign and pledge all or any portion of the Loans
and/or obligations owing to it, and its beneficial interests in the Collateral,
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 Bank 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 Bank from its obligations
hereunder.
Section 9.09 Confidentiality. Each Bank and the Administrative Agent
agrees to exercise its best efforts (but without any requirement for the
expenditure of funds) to keep any information delivered or made available by the
Borrower to it which is clearly indicated to be confidential information,
confidential from anyone other than persons employed or retained by such Bank
who are or are expected to become engaged in evaluating, approving, structuring
or administering the Loans; provided, however that nothing herein shall prevent
any Bank or the Administrative Agent from disclosing such information (i) to any
other Bank or the Administrative Agent, (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 Bank or the Administrative Agent,
(iv) which has been publicly disclosed through no commission or omission by a
Bank or the Administrative Agent, (v) to the extent reasonably required in
connection with any litigation to which the Administrative Agent, any Bank 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
Bank's or the Administrative Agent'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 9.09; provided that should disclosure of any such
confidential information be required by virtue of clause (ii) of the immediately
preceding sentence, any relevant Bank or the Administrative Agent shall promptly
69
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, neither
any Bank nor the Administrative Agent 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 9.10 Representation by Banks. Each Bank 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, however that,
subject to Section 9.08, the disposition of the Note or Notes held by that Bank
shall at all times be within its exclusive control.
Section 9.11 Obligations Several. The obligations of each Bank
hereunder are several, and no Bank shall be responsible for the obligations or
commitment of any other Bank hereunder. Nothing contained in this Agreement and
no action taken by the Banks pursuant hereto shall be deemed to constitute the
Banks to be a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and
it shall not be necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
Section 9.12 New York Law. This Agreement and each Note shall be
construed in accordance with and governed by the law of the State of New York.
Section 9.13 Severability. In case any one or more of the provisions
contained in this Agreement, the Notes or any of the other Loan 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 9.14 Interest. In no event shall the amount of interest, and
all charges, amounts or fees contracted for, charged or collected pursuant to
this Agreement, the Notes or the other Loan Documents and deemed to be interest
under applicable law (collectively, "Interest") exceed the highest rate of
interest allowed by applicable law (the "Maximum Rate"), and in the event any
such payment is inadvertently received by any Bank, then the excess sum (the
"Excess") shall be credited as a payment of principal, unless the Borrower shall
notify such Bank in writing that it elects to have the Excess returned
forthwith. It is the express intent hereof that the Borrower not pay and the
Banks 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 Banks do not intend to
collect any unearned interest in the event of any such acceleration. All monies
paid to the Administrative Agent or the Banks hereunder or under any of the
Notes or the other Loan 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
70
Borrower shall not seek or pursue any other remedy, legal or equitable , against
the Administrative Agent or any Bank, based in whole or in part upon contracting
for charging or receiving any Interest in excess of the Maximum Rate. For the
purpose of determining whether or not any Excess has been contracted for,
charged or received by the Administrative Agent or any Bank, 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 Loan 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
Administrative Agent and each Bank 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 Loan Documents (whether or not
any provision of this Section is referred to therein). All such Loan 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 Loan Documents be
automatically recomputed by the Borrower, and by any court considering the same,
to give effect to the adjustments or credits required by this Section.
Section 9.15 Interpretation. No provision of this Agreement or any of
the other Loan 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,
drafted or dictated such provision.
Section 9.16 Waiver of Jury Trial; Consent to Jurisdiction. The
Borrower (a) and each of the Banks and the Administrative Agent 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
Loan 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 Loan 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 Loan Documents, and (d) and
each of the Banks and the Administrative Agent agrees that service of process
may be made upon it in the manner prescribed in Section 9.01 for the giving of
notice to the Borrower. Nothing herein contained, however, shall prevent the
Administrative Agent from bringing any action or exercising any rights against
any security and against the Borrower personally, and against any assets of the
Borrower, within any other state or jurisdiction.
Section 9.17 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 9.18 Source of Funds -- ERISA. Each of the Banks hereby
severally (and not jointly) represents to the Borrower that no part of the funds
to be used by such Bank to fund the Loans hereunder from time to time
constitutes (i) assets allocated to any separate account maintained by such Bank
71
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 9.19 Release of Receivables Program Assets. Contemporaneously
with the closing of a Receivables Securitization Program, upon the written
request of the Borrower, the Administrative Agent shall execute and deliver an
intercreditor agreement, in form and substance satisfactory to the
Administrative Agent between the Borrower, the Administrative Agent and the
trustee or administrative agent under the Receivables Securitization Program
(the "Receivables Intercreditor Agreement") which among other things will
include (x) a release by the Administrative Agent of its security interest in
Receivables Program Assets, and its agreement to terminate or amend UCC-1
financing statements related thereto, and (b) a recognition by such trustee or
administrative agent of the security interest of the Administrative Agent in any
Receivables which are not Receivables Program Assets; provided that: (i) the
Borrower executes and delivers an amendment to the Domestic Stock Pledge
Agreement, in form and substance reasonably satisfactory to the Administrative
Agent, adding thereto the pledge of the capital stock of the Receivables
Subsidiary. Upon the closing of a Receivables Securitization Program, each of
the Banks hereby authorizes the Administrative Agent to release the Receivables
Program Assets and to execute, deliver and perform the Receivables Intercreditor
Agreement and agrees to be bound by the terms and provisions thereof. The
Borrower agrees that, so long as any Obligations or Commitments remain
outstanding, it will not exercise its right to continue to make sales of
Receivables under the Receivables Documents at a time when sales otherwise would
automatically terminate thereunder.
Section 9.20 European Economic and Monetary Union.
(a) In this Section 9.20 and in each other provision of this
agreement to which reference is made in this Section 9.20 expressly or
impliedly, the following terms have the meanings given to them in this Section
9.20.
"commencement of the third stage of EMU" means January 1,
1999.
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union.
"EMU legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation of the euro.
"euro" means the single currency of the participating member
states as of the date, for each such participating member state, such
participating member state's national currency unit shall be substituted by the
euro.
"euro unit" means the currency unit of the euro.
"national currency unit" means the unit of currency of a
participating member state, as defined on the day before the commencement of the
third stage of EMU.
72
"participating member state" means each state so described in
any EMU legislation, and in particular, as of the commencement of the third
stage of EMU, Belgium, Germany, Spain, France, Ireland, Italy, Luxembourg,
Netherlands, Austria, Portugal and Finland.
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty
(which was signed at Maastricht on February 7, 1992, and came into force on
November 1, 1993), as amended from time to time.
"Transitional period" means the period beginning on January 1,
1999 and ending on December 31, 2001.
(b) The provisions of paragraphs (c) to (j) below (inclusive)
shall be effective at and from the commencement of the third stage of EMU,
provided, that if and to the extent that any such provision relates to any state
(or the currency of such state) that is not a participating member state on the
commencement of the third stage of EMU, such provisions shall become effective
in relation to such state (and the currency of such state) at and from the date
on which such state becomes a participating member state.
(c) Each obligation under this agreement of a party to this
agreement which has been denominated in the national currency unit of a
participating member state shall be redenominated into the euro unit in
accordance with EMU legislation, provided, that during the transitional period
an amount denominated either in the euro or in the national currency unit of a
participating member state and payable within that participating member state by
crediting an account of the creditor can be paid by the debtor either in the
euro unit or in the national currency unit, each party to this Agreement shall
be entitled to pay or repay any such amount either in the euro unit or in such
national currency unit.
(d) Any Syndicated Foreign Currency Loan in the currency of a
participating member state shall be made in the euro unit, or, during the
transitional period, in a national currency unit requested by the Borrower.
(e) With respect to any amount denominated or to be
denominated in the euro or a national currency unit, any reference to a "Foreign
Currency Business Day" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which lenders are generally open for business in
(i) Atlanta, Georgia, London and New York City; and
(ii) Frankfurt am Main, Germany or any other
financial center relating to the relevant national currency
unit (or such principal financial center or centers in such
participating member state or states as the Administrative
Agent may from time to time nominate for this purpose).
(f) Sections 2.02(c) and 2.10(a) shall be construed so that,
in relation to the payment of any amount of euro units or national currency
units, such amount shall be made available to the Administrative Agent in
immediately, freely transferable, cleared funds to such account with such lender
in Frankfurt am Main, Germany (or such other principal financial center in such
73
participating member state as the Administrative Agent may from time to time
nominate for this purpose) as the Administrative Agent shall from time to time
nominate for this purpose.
(g) Any amount payable by the Administrative Agent to the
Banks under this Agreement in the currency of a participating member state shall
be paid in the euro unit, or, during the transitional period, in a national
currency unit in which borrowed.
(h) With respect to the payment of any amount denominated in
the euro or in a national currency unit, the Administrative Agent shall not be
liable to the Borrower or any of the Banks in any way whatsoever for any delay,
or the consequences of any delay, in the crediting to any account of any amount
required by this Agreement to be paid by the Administrative Agent if the
Administrative Agent shall have taken all relevant steps to achieve, on the date
required by this Agreement, the payment of such amount in immediately available,
freely transferable, cleared funds (in the euro unit or, as the case may be, in
a national currency unit) to the account with the lender in the principal
financial center in the participating member state which the Borrower or, as the
case may be, any Bank shall have specified for such purpose. In this paragraph
(h), "all relevant steps" means all such steps as may be prescribed from time to
time by the regulations or operating procedures of such clearing or settlement
system as the Administrative Agent may from time to time determine for the
purpose of clearing or settling payments of the euro.
(i) If the basis of accrual of interest or fees expressed in
this Agreement with respect to the currency of any state that becomes a
participating member state shall be inconsistent with any convention or practice
in the London interbank market for the basis of accrual of interest or fees in
respect of the euro, such convention or practice shall replace such expressed
basis effective as of and from the date on which such state becomes a
participating member state; provided, that if any Syndicated Foreign Currency
Loan in the currency of such state is outstanding immediately prior to such
date, such replacement shall take effect, with respect to such Syndicated
Foreign Currency Loan, at the end of the then current Interest Period.
(j) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU legislation and without prejudice
to the respective liabilities for indebtedness of the Borrower to the Banks and
the Banks to the Borrower under or pursuant to this Agreement.
(i) each reference in this Agreement to a minimum
amount (or an integral multiple thereof) in a national
currency unit to be paid to or by the Administrative Agent
shall be replaced by a reference to such reasonably comparable
and convenient amount (or an integral multiple thereof) in the
euro unit as the Administrative Agent may from time to time
specify; and
(ii) except as expressly provided in this Section
9.20, each provision of this Agreement shall be subject to
such reasonable changes of construction as the Administrative
Agent may from time to time specify to be necessary or
appropriate to reflect the introduction of or changeover to
the euro in participating member states.
74
(k) The Borrower shall from time to time, at the request of
the Administrative Agent, pay to the Administrative Agent for the account of
each Bank the amount of any cost or increased cost incurred by, or of any
reduction in amount payable to or in the effective return on its capital to, or
of interest or other return forgone by, such Bank or any holding company of such
Bank as a result of the introduction of, changeover to or operation of the euro
in any participating member state.
[Signatures are contained on the following pages.]
75
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.
XXXXXXXX XXXXX, INC. (SEAL)
By: /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------
Title: Executive Vice President
and Chief Financial Officer
Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
Commitment: $40,000,000 WACHOVIA BANK, N.A.,
as Administrative Agent and a Bank (SEAL)
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------
Title: Senior Vice President
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000-0000
Attention: Syndications Group
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
76
Commitment: $35,000,000 FIRST UNION NATIONAL BANK,
as a Bank (SEAL)
By: /s/ Xxxxx Xxxx
----------------------------
Title: Senior Vice President
First Union National Bank
One First Union Center
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
77
Commitment: $35,000,000 BANK ONE, NA,
as a Bank (SEAL)
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Title: Assistant Vice President
Bank One NA
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
78
Commitment: $20,000,000 BRANCH BANKING AND TRUST
COMPANY, as a Bank (SEAL)
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------
Title: Senior Vice President
Branch Banking and Trust Company
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
TOTAL COMMITMENTS:
$130,000,000
79
EXHIBIT A-1
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FORM OF SYNDICATED DOLLAR LOAN NOTE
Atlanta, Georgia
May 26, 2000
For value received, XXXXXXXX XXXXX, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of
______________________________________, a ____________________ (the "Bank"), for
the account of its Lending Office, the principal sum of
___________________________________ AND NO/100 DOLLARS ($ ), or such lesser
amount as shall equal the unpaid principal amount of each Loan made by the Bank
to the Borrower pursuant to the Credit Agreement referred to below, on the dates
and in the amounts provided in the Credit Agreement. The Borrower promises to
pay interest on the unpaid principal amount of this Syndicated Dollar Loan Note
on the dates and at the rate or rates provided for Syndicated Dollar Loans in
the Credit Agreement. Interest on any overdue principal of and, to the extent
permitted by law, overdue interest on the principal amount hereof shall bear
interest at the Default Rate, as provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of Wachovia
Bank, N.A., 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000-0000, or such
other address as may be specified from time to time pursuant to the Credit
Agreement.
All Loans made by the Bank, the respective maturities thereof,
the interest rates from time to time applicable thereto, and all repayments of
the principal thereof shall be recorded by the Bank and, prior to any transfer
hereof, endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof; provided that
the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.
This Syndicated Dollar Loan Note is one of the Syndicated
Dollar Loan Notes referred to in the Credit Agreement dated as of May 26, 2000
among the Borrower, the Banks listed on the signature pages thereof, Wachovia
Bank, N.A., as Administrative Agent, First Union National Bank, as Syndication
Agent and Bank One, N.A., as Documentation Agent (as the same may be amended and
modified from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the optional and mandatory prepayment and
the repayment hereof and the acceleration of the maturity hereof, as well as the
obligation of the Borrower to pay all costs of collection, including reasonable
attorneys fees, in the event this Syndicated Loan Note is collected by law or
through an attorney at law.
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly provided for
in the Credit Agreement.
80
IN WITNESS WHEREOF, the Borrower has caused this Syndicated
Dollar Loan Note to be duly executed, under seal, by its duly authorized officer
as of the day and year first above written.
XXXXXXXX XXXXX, INC. (SEAL)
By:
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Title:
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81
Syndicated Dollar Loan Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Base Rate Amount of
Date Euro-Dollar Loan Amount of Loan Principal Repaid Maturity Date Notation Made by
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82
EXHIBIT A-2
-----------
FORM OF SYNDICATED FOREIGN CURRENCY LOAN NOTE
Atlanta, Georgia
May 26, 2000
For value received, XXXXXXXX XXXXX, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of
_________________________________________, a ____________________ (the "Bank"),
for the account of its Lending Office, the outstanding principal amount of the
Foreign Currency Loans made by the Bank to the Borrower as Foreign Currency
Loans pursuant to the Credit Agreement referred to below, on the dates and in
the amounts provided in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of this Note on the dates and at the
rate or rates provided for Foreign Currency Loans in the Credit Agreement.
Interest on any overdue principal of and, to the extent permitted by law,
overdue interest on the principal amount hereof shall bear interest at the
Default Rate, as provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the applicable Foreign
Currency in immediately available funds at the office of Wachovia Bank, N.A.,
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000-0000, or such other address
as may be specified from time to time pursuant to the Credit Agreement.
All Foreign Currency Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto, and
all repayments of the principal thereof shall be recorded by the Bank and, prior
to any transfer hereof, endorsed by the Bank on the schedule attached hereto, or
on a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Credit
Agreement.
This Note is one of the Syndicated Foreign Currency Loan Notes
referred to in the Credit Agreement dated as of May 26, 2000 among the Borrower,
the Banks listed on the signature pages thereof, Wachovia Bank, N.A., as
Administrative Agent, First Union National Bank, as Syndication Agent and Bank
One, N.A., as Documentation Agent (as the same may be amended and modified from
time to time, the "Credit Agreement"). Terms defined in the Credit Agreement are
used herein with the same meanings. Reference is made to the Credit Agreement
for provisions for the optional and mandatory prepayment and the repayment
hereof and the acceleration of the maturity hereof, as well as the obligation of
the Borrower to pay all costs of collection, including reasonable attorneys
fees, in the event this Syndicated Foreign Currency Loan Note is collected by
law or through an attorney at law.
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly provided for
in the Credit Agreement.
83
IN WITNESS WHEREOF, the Borrower has caused this Syndicated
Foreign Currency Loan Note to be duly executed, under seal, by its duly
authorized officer as of the day and year first above written.
XXXXXXXX XXXXX, INC. (SEAL)
By:
------------------------------------
Title:
------------------------------
84
Syndicated Foreign Currency Loan Note (cont'd)
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF XXXXXXXX XXXXX, INC.
DATED MAY 26, 2000
Base Rate Amount of Principal
Date Euro-Dollar Loan Amount of Loan Repaid Maturity Date
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85
EXHIBIT A-3
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SWING LOAN NOTE
Atlanta, Georgia
May 26, 2000
For value received, XXXXXXXX XXXXX, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of WACHOVIA BANK,
N.A., a national banking association (the "Bank"), for the account of its
Lending Office, the principal sum of the Dollar Equivalent of Ten Million and
No/100 Dollars ($10,000,000), or such lesser amount as shall equal the unpaid
principal amount of each Swing Loan made by the Bank to the Borrower pursuant to
the Credit Agreement referred to below, on the dates and in the amounts provided
in the Credit Agreement. The Borrower promises to pay interest on the unpaid
principal amount of this Swing Loan Note at the rate provided for Base Rate
Loans, or, with respect to Foreign Currency Loans, at the applicable rate
therefor set forth in the Credit Agreement, on the dates provided for in the
Credit Agreement. Interest on any overdue principal of and, to the extent
permitted by law, overdue interest on the principal amount hereof shall bear
interest at the Default Rate, as provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States, or, with respect to Foreign Currency Loans, in the Foreign Currency in
which made, in Federal or other immediately available funds at the office of
Wachovia Bank, N.A., 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000-0000, or
such other address as may be specified from time to time pursuant to the Credit
Agreement.
All Swing Loans made by the Bank, the respective maturities
thereof, and all repayments of the principal thereof shall be recorded by the
Bank and, prior to any transfer hereof, endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Swing Loan Note is the Swing Loan Note referred to in the
Credit Agreement dated as of even date herewith among the Borrower, the Banks
listed on the signature pages thereof, Wachovia Bank, N.A., as Administrative
Agent, First Union National Bank, as Syndication Agent and Bank One, N.A., as
Documentation Agent (as the same may be amended and modified from time to time,
the "Credit Agreement"). Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is made to the Credit Agreement for provisions
for the optional and mandatory prepayment and the repayment hereof and the
acceleration of the maturity hereof.
86
IN WITNESS WHEREOF, the Borrower has caused this Swing Loan
Note to be duly executed, under seal, by its duly authorized officer as of the
day and year first above written.
XXXXXXXX XXXXX, INC. (SEAL)
By:
------------------------------------
Title:
------------------------------
87
Swing Loan Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Foreign Currency Amount of
Date Amount of Loan or Base Rate Loan Principal Repaid Maturity Date Notation Made by
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EXHIBIT B-1
-----------
OPINION OF WEIL, GOTSHAL & XXXXXX
Special Counsel to the Borrower
May 26, 2000
To the Banks and the
Administrative Agent referred to herein
c/o Wachovia Bank, N.A., as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Syndications Group
Gentlemen:
We have acted as special counsel to Xxxxxxxx Xxxxx, Inc., a
Delaware corporation (the "Company"), in connection with the execution and
delivery of, and the consummation of the transactions contemplated by, the
Credit Agreement, dated as of May ___, 2000 (the "Credit Agreement"), among the
Company, the banks listed on the signature pages thereof (the "Banks"), Wachovia
Bank, N.A., as Administrative Agent (the "Administrative Agent"), First Union
National Bank, as Syndication Agent and Bank One, N.A., as Documentation Agent,
pursuant to which the Company has established with the Banks a revolving credit
facility for an aggregate principal amount of up to $130,000,000. Terms defined
in the Credit Agreement and not otherwise defined herein are used herein with
the meanings as so defined. This opinion is being delivered to you pursuant to
Section 3.01(c) of the Credit Agreement.
In so acting, we have examined originals or copies (certified
or otherwise identified to our satisfaction) of the Loan Documents and the
Intercreditor Agreement, and such corporate records, agreements, documents and
other instruments, and such certificates or comparable documents of public
officials and of officers and representatives of the Company, and have made such
inquiries of such officers and representatives, as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to this opinion that have not been independently established,
we have relied upon certificates or comparable documents of officers and
representatives of the Company and upon the representations and warranties of
the Company contained in the Loan Documents executed on or before the date
hereof to which it is a party (collectively, the "Company Documents"). We have
also assumed (i) that the Company has the requisite corporate power and
authority to enter into and perform the Company Documents, (ii) the due
authorization, execution and delivery of the Company Documents by the Company,
(iii) the valid existence of each Guarantor, (iv) that each Guarantor has the
89
requisite corporate power and authority to enter into and perform the Loan
Documents executed on or before the date hereof to which it is a party
(collectively, the "Guarantor Documents") and (v) the due authorization,
execution and delivery of the Guarantor Documents by each Guarantor. We have
also assumed the validity and enforceability of the obligations of the Company
and each of the Guarantors under the Loan Documents under the laws of the State
of Georgia. As used herein, "to our knowledge" and "of which we are aware" mean
the conscious awareness of facts or other information by any lawyer in our firm
actively involved in the transactions contemplated by the Loan Documents.
Based on the foregoing, and subject to the qualifications
stated herein, we are of the opinion that:
1. The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware and has all requisite corporate
power and authority to own its properties and to carry on its business as now
being conducted.
2. Assuming the due authorization, execution and delivery
thereof by the other parties thereto, the Company Documents (other than the
Mortgages) constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity), and except that (A) no opinion is expressed with respect to the last
sentence of Section 9.05 of the Credit Agreement and (B) certain remedial
provisions of the Security Documents are or may be unenforceable in whole or in
part under the laws of the State of New York, but the inclusion of such
provisions does not affect the validity of the Security Documents, and the
Security Documents contain adequate provision for the practical realization of
the rights and benefits afforded thereby. No opinion is expressed in this
paragraph as to the attachment, perfection or priority of any liens granted
pursuant to the Security Documents.
3. Assuming the due authorization, execution and delivery
thereof by the other parties thereto, the Guarantor Documents (other than the
Mortgages) constitute the legal, valid and binding obligations of each
Guarantor, enforceable against such Guarantor in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity), and except that certain remedial provisions of
the Security Documents are or may be unenforceable in whole or in part under the
laws of the State of New York, but the inclusion of such provisions does not
affect the validity of the Security Documents, and the Security Documents
contain adequate provision for the practical realization of the rights and
benefits afforded thereby. No opinion is expressed in this paragraph as to the
attachment, perfection or priority of any liens granted pursuant to the Security
Documents.
90
4. To our knowledge, except as otherwise provided in the Loan
Documents, no consent, approval, waiver, license or authorization or other
action by or filing with any New York, Delaware corporate or federal
governmental authority is required in connection with (i) the execution and
delivery by the Company of the Company Documents, the consummation by the
Company of the transactions contemplated thereby or the performance by the
Company of its obligations thereunder and (ii) the execution and delivery by any
Guarantor of the Guarantor Documents, the consummation by such Guarantor of the
transactions contemplated thereby or the performance by such Guarantor of its
obligations thereunder, in each case, except for filings in connection with
perfecting security interests and federal or state securities or blue sky laws,
as to which we express no opinion, and those already obtained.
5. The execution and delivery by the Company of the Company
Documents and the performance by the Company of its obligations thereunder, and
the execution and delivery by any Guarantor of the Guarantor Documents and the
performance by such Guarantor of its obligations thereunder, will not conflict
with, constitute a default under or violate New York, Delaware corporate or
federal law or regulation (other than federal and state securities or blue sky
laws, as to which we express no opinion).
6. Neither the Company nor any Guarantor is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
7. Neither the Company nor any Guarantor 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.
8. The opinions expressed herein are limited to the laws of
the State of New York, the corporate laws of the State of Delaware and the
federal laws of the United States, and we express no opinion as to the effect on
the matters covered by this letter of the laws of any other jurisdiction. For
the purposes of this opinion, we have assumed that the laws of the State of
Georgia, which is the governing law of the Company Documents and the Guarantor
Documents (other than the Mortgages), are the same as the laws of the State of
New York.
The opinions expressed herein are rendered solely for your
benefit in connection with the transactions described herein. Those opinions may
not be used or relied upon by any other person, except an Assignee or
Participant, nor may this letter or any copies hereof be furnished to a third
party, filed with a governmental agency, quoted, cited or otherwise referred to
without our prior written consent, other than to an Assignee, a Participant, a
prospective Assignee or a prospective Participant.
Very truly yours,
91
EXHIBIT B-2
-----------
OPINION OF XXXXXX X. XXXXX, XX
General Counsel of the Borrower
May 26, 2000
To the Banks and Administrative Agent referred to herein
c/o Wachovia Bank, N.A., as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Syndications Group
Gentlemen:
As General Counsel of Xxxxxxxx Xxxxx, Inc., a Delaware
corporation (the "Company"), I am generally familiar with the legal affairs of
the Company and the Guarantors and am familiar with the actions taken by the
Company with respect to the execution and delivery of, and the consummation of
the transactions contemplated by, the Credit Agreement, dated as of May___, 2000
(the "Credit Agreement"), among the Company, the banks listed on the signature
pages thereof (the "Banks"), Wachovia Bank, N.A., as Administrative Agent (the
"Administrative Agent"), First Union National Bank, as Syndication Agent and
Bank One, N.A., as Documentation Agent, pursuant to which the Company has
established with the Banks a revolving credit facility for an aggregate
principal amount of up to $130,000,000. Terms defined in the Credit Agreement
and not otherwise defined herein are used herein with the meanings as so
defined. This opinion is being delivered to you pursuant to Section 3.01(c) of
the Credit Agreement.
In connection with rendering this opinion, I have examined
originals or copies, certified or otherwise identified to my satisfaction, of
the Loan Documents and such corporate records, agreements, documents and other
instruments, and such certificates or comparable documents of public officials,
and have made such other inquiries of such officers and representatives, as I
have deemed relevant and necessary as a basis for the opinions hereinafter set
forth.
In such examination, I have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to me as originals, the conformity to original documents of
all documents submitted to me as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to these opinions that have not been independently established,
I have relied upon certificates or comparable documents of officers and
representatives of the Company and upon the representations and warranties of
the Company and the Guarantors contained in the Loan Documents.
Based on the foregoing, and subject to the qualifications
stated herein, I am of the opinion that:
92
1. Each Guarantor is a corporation validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all requisite corporate power and authority to own its properties and to carry
on its business as now being conducted.
2. Each of the Company and the Guarantors has all requisite
corporate power and authority to execute and deliver the Loan Documents to which
it is a party and to perform its obligations thereunder. The execution, delivery
and performance by each of the Company and the Guarantors of the Loan Documents
to which it is a party have been duly authorized by all necessary corporate
action on the part of each of the Company and the Guarantors. Each of the
Company and the Guarantors have duly and validly executed and delivered the Loan
Documents to which it is a party.
3. To my knowledge, except as otherwise provided in the Credit
Agreement, there is no litigation, proceeding or governmental investigation
pending or overtly threatened against the Company or any of the Guarantors that
relates to any of the transactions contemplated by the Loan Documents or which,
if adversely determined, would have a material adverse effect on the business,
assets or financial condition of the Company and its Subsidiaries taken as a
whole.
4. The execution and delivery by the Company of the Loan
Documents to which it is a party (the "Company Documents") and the performance
by the Company of its obligations thereunder will not (A) conflict with,
constitute a default under or violate (i) any of the terms, conditions or
provisions of the Certificate of Incorporation or by-laws of the Company, (ii)
any of the terms, conditions or provisions of any material document, agreement
or other instrument to which the Company is a party or by which it is bound of
which I am aware (except for any consents which may be required with respect to
the Security Documents) or (iii) any judgment, writ, injunction, decree, order
or ruling of any court or governmental authority binding on the Company of which
I am aware or (B) to my knowledge, except as otherwise contemplated by the Loan
Documents, result in the creation or imposition of any lien, charge or
encumbrance upon any assets of the Company.
5. The execution and delivery by each Guarantor of the Loan
Documents to which it is a party (the "Guarantor Documents") and the performance
by such Guarantor of its obligations thereunder will not (A) conflict with,
constitute a default under or violate (i) any of the terms, conditions or
provisions of the Certificate of Incorporation or by-laws of such Guarantor,
(ii) any of the terms, conditions or provisions of any material document,
agreement or other instrument to which such Guarantor is a party or by which it
is bound of which I am aware (except for any consents which may be required with
respect to the Security Documents) or (iii) any judgment, writ, injunction,
decree, order or ruling of any court or governmental authority binding on such
Guarantor of which I am aware or (B) to my knowledge, except as otherwise
contemplated by the Loan Documents, result in the creation or imposition of any
lien, charge or encumbrance upon any assets of such Guarantor.
6. No consent, approval, waiver, license or authorization or
other action by or filing with any North Carolina governmental authority is
required in connection with the execution and delivery by each of the Company
and the Guarantors of the Loan Documents to which it is a party, the
consummation by each of the Company and the Guarantors of the transactions
93
contemplated thereby or the performance by each of the Company and the
Guarantors of its obligations thereunder, except for filings in connection with
perfecting security interests and federal and state securities or blue sky laws,
as to which I express no opinion, and those already obtained.
The opinions expressed herein are limited to the laws of the
State of North Carolina and the corporate laws of the State of Delaware, and I
express no opinion as to the effect on the matters covered by this letter of the
laws of any other jurisdiction.
The opinions expressed herein are rendered solely for your
benefit in connection with the transactions described herein. Those opinions may
not be used or relied upon by any other person, except an Assignee or
Participant, nor may this letter or any copies hereof be furnished to a third
party, filed with a governmental agency, quoted, cited or otherwise referred to
without my prior written consent, other than to an Assignee, a Participant, a
prospective Assignee or a prospective Participant.
Very truly yours,
Xxxxxx X. Xxxxx, Xx.
General Counsel
94
EXHIBIT C
---------
OPINION OF
XXXXX, DAY, XXXXXX & XXXXX, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
May 26, 2000
To the Banks and the Administrative Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Syndications Group
Dear Sirs:
We have participated in the preparation of the Credit
Agreement (the "Credit Agreement") dated as of May 26, 2000, among Xxxxxxxx
Xxxxx, Inc., a Delaware corporation (the "Borrower"), the banks listed on the
signature pages thereof (the "Banks"), Wachovia Bank, N.A., as Administrative
Agent (the "Administrative Agent"), First Union National Bank, as Syndication
Agent and Bank One, N.A., as Documentation Agent and have acted as special
counsel for the Administrative Agent for the purpose of rendering this opinion
pursuant to Section 3.01(d) of the Credit Agreement. Terms defined in the Credit
Agreement are used herein as therein defined.
This opinion letter is limited by, and is in accordance with,
the January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal Opinion
Committee of the Corporate and Banking Law Section of the State Bar of Georgia
which Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, and assuming the due
authorization, execution and delivery of the Credit Agreement, the Contribution
Agreement and each of the Notes by or on behalf of the Borrower, and of the
Guaranty and the Contribution Agreement by each the Guarantor, we are of the
opinion that each of the Credit Agreement, the Contribution Agreement and the
Guaranty constitutes a valid and binding agreement of the Borrower and the
Guarantor, respectively, and each Note constitutes valid and binding obligations
of the Borrower, in each case enforceable in accordance with its terms except
as: (i) the enforceability thereof may be affected by bankruptcy, insolvency,
95
reorganization, fraudulent conveyance, voidable preference, moratorium or
similar laws applicable to creditors' rights or the collection of debtors'
obligations generally; (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability; and (iii) the enforceability of certain of the remedial, waiver
and other provisions of the Credit Agreement, the Contribution Agreement, the
Notes and the Guaranty may be further limited by the laws of the State of
Georgia; provided, however, such additional laws do not, in our opinion,
substantially interfere with the practical realization of the benefits expressed
in the Credit Agreement and the Notes, except for the economic consequences of
any procedural delay which may result from such laws.
In giving the foregoing opinion, we express no opinion as to
the effect (if any) of any law of any jurisdiction except the State of Georgia.
We express no opinion as to the effect of the compliance or noncompliance of the
Administrative Agent or any of the Banks with any state or federal laws or
regulations applicable to the Administrative Agent or any of the Banks by reason
of the legal or regulatory status or the nature of the business of the
Administrative Agent or any of the Banks.
This opinion is delivered to you in connection with the
transaction referenced above and may only be relied upon by you and any
Assignee, Participant or other Transferee under the Credit Agreement without our
prior written consent.
Very truly yours,
96
EXHIBIT D
---------
ASSIGNMENT AND ACCEPTANCE
Dated ____________ __,
Reference is made to the Credit Agreement dated as of May 26,
2000 (together with all amendments and modifications thereto, the "Credit
Agreement") among Xxxxxxxx Xxxxx, Inc. a Delaware corporation (the "Borrower"),
the Banks (as defined in the Credit Agreement), Wachovia Bank, N.A., as
Administrative Agent (the "Administrative Agent"), First Union National Bank, as
Syndication Agent and Bank One, N.A., as Documentation Agent. Terms defined in
the Credit Agreement are used herein with the same meaning.
____________________ (the "Assignor") and
___________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
without recourse to the Assignor, and the Assignee hereby purchases and assumes
from the Assignor, a % interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, a % interest (which on the Effective Date
hereof is $__________) in the Assignor's Commitment and a interest (which on the
Effective Date hereof is $ ) in the Syndicated Loans owing to the Assignor and a
% interest in the Note[s] held by the Assignor (which on the Effective Date
hereof is $__________).
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto, other than that it is the legal and beneficial owner of the interest
being assigned by it hereunder, that such interest is free and clear of any
adverse claim and that as of the date hereof its Commitment (without giving
effect to assignments thereof which have not yet become effective) is
$__________ and the aggregate outstanding principal amount of Syndicated Loans
owing to it (without giving effect to assignments thereof which have not yet
become effective) is $_____________; (ii) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto; and (iii) attaches the Note[s] referred to in
paragraph 1 above and requests that the Administrative Agent exchange such
Note[s] for [(x)] a new Syndicated Dollar Loan Note dated , in the principal
amount of $__________ , a new Syndicated Foreign Currency Loan Note dated
__________________, ____ in the principal amount of $__________, [and a new
Swing Loan Note,] each payable to the order of the Assignee [and (y) a new
Syndicated Dollar Loan Note dated , in the principal amount of $__________, a
new Syndicated Foreign Currency Loan Note dated __________________, ____ in the
principal amount of $__________, each payable to the order of the Assignor].
97
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.04(a) thereof (or any more recent financial statements of the
Borrower delivered pursuant to Section 5.01(a) or (b) thereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Assignor or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) confirms that it
is a bank or financial institution; (iv) appoints and authorizes the
Administrative Agent to take such action as Administrative Agent on its behalf
and to exercise such powers under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it shall be bound by all of the
provisions of the Credit Agreement and Intercreditor Agreement (and that, by
execution hereof, it has become a party thereto) and agrees that it will perform
in accordance with their terms all of the obligations which by the terms of the
Credit Agreement or the Intercreditor Agreement are required to be performed by
it as a Bank or as a Secured Party, as the case may be; (vi) specifies as its
Lending Office (and address for notices) the office set forth beneath its name
on the signature pages hereof, (vii) represents and warrants that the execution,
delivery and performance of this Assignment and Acceptance are within its
corporate powers and have been duly authorized by all necessary corporate action
(viii) makes the representation and warranty contained in Section 9.18 of the
Credit Agreement [, and (ix) attaches the forms prescribed by the Internal
Revenue Service of the United States certifying as to the Assignee's status for
purposes of determining Assignee's total exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement and the Notes.
4. The Effective Date for this Assignment and Acceptance shall
be __________, ____ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
execution and acceptance by the Administrative Agent and to the Borrower for
execution by the Borrower.
5. Upon such execution and acceptance by the Administrative
Agent [and execution by the Borrower] [If required by the Credit Agreement],
from and after the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent rights and obligations have been transferred
to it by this Assignment and Acceptance, have the rights and obligations of a
Bank thereunder and (ii) the Assignor shall, to the extent its rights and
obligations have been transferred to the Assignee by this Assignment and
Acceptance, relinquish its rights (other than under Sections 8.03, 9.03 and 9.04
of the Credit Agreement) and be released from its obligations under the Credit
Agreement.
6. Upon such execution and acceptance by the Administrative
Agent [and execution by the Borrower] [If required by the Credit Agreement],
from and after the Effective Date, the Administrative Agent shall make all
payments in respect of the interest assigned hereby to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments for
periods prior to such acceptance by the Administrative Agent directly between
themselves.
98
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:
---------------------------------------------
Title:
---------------------------------------
[NAME OF ASSIGNOR]
By:
---------------------------------------------
Title:
---------------------------------------
Lending Office:
[Address]
WACHOVIA BANK, N.A., as Administrative Agent
By:
---------------------------------------------
Title:
---------------------------------------
XXXXXXXX XXXXX, INC.
IF REQUIRED BY THE CREDIT AGREEMENT.
By:
---------------------------------------------
Title:
---------------------------------------
99
EXHIBIT E
---------
NOTICE OF BORROWING
-----------------, ------
Wachovia Bank, N.A., as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Syndications Group
Re: Credit Agreement (as amended and modified from time to time,
the "Credit Agreement") dated as of May 26, 2000, by and among
Xxxxxxxx Xxxxx, Inc., the Banks from time to time parties
thereto,, Wachovia Bank, N.A., as Administrative Agent, First
Union National Bank, as Syndication Agent and Bank One, N.A.,
as Documentation Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.02
of the Credit Agreement.
The Borrower hereby requests a [Syndicated Borrowing] which is a
[Euro-Dollar Borrowing] [Base Rate Borrowing] [Swing Loan Borrowing][Foreign
Currency Borrowing in][SPECIFY FOREIGN CURRENCY] in the aggregate principal
amount of [the Dollar Equivalent of] $ to be made on , , and for interest to
accrue thereon at the rate established by the Credit Agreement for [Euro-Dollar
Loans] [Base Rate Loans] [Foreign Currency Loans]. The duration of the Interest
Period with respect thereto shall be [1 month] [2 months] [3 months] [6 months].
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this day of , .
XXXXXXXX XXXXX, INC.
By:
---------------------------------------------
Title:
---------------------------------------
100
EXHIBIT F
---------
COMPLIANCE CERTIFICATE
Reference is made to the Credit Agreement dated as of May 26,
2000 (as modified and supplemented and in effect from time to time, the "Credit
Agreement") among Xxxxxxxx Xxxxx, Inc., the Banks from time to time parties
thereto, Wachovia Bank, N.A., as Administrative Agent, First Union National
Bank, as Syndication Agent and Bank One, N.A., as Documentation Agent.
Capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement.
Pursuant to Section 5.01(c) [or 5.05(a)]of the Credit
Agreement, , the duly authorized of Xxxxxxxx Xxxxx, Inc., hereby (i) certifies
to the Administrative Agent and the Banks that the information contained in the
Compliance Check List attached hereto is true, accurate and complete as of , ,
and that no Default is in existence on and as of the date hereof and (ii)
restates and reaffirms that the representations and warranties contained in
Article IV of the Credit Agreement are true on and as of the date hereof as
though restated on and as of this date.
XXXXXXXX XXXXX, INC. (SEAL)
By:
---------------------------------------------
Title:
---------------------------------------
101
1. Consolidations, Mergers and Sales of Assets (Section 5.05)
The Borrower will not, nor will it permit any Subsidiary to . . . sell,
lease or otherwise transfer all or any substantial part of its assets
to, any other Person, or discontinue or eliminate any business line or
segment, provided that . . . (c) 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, subject
to Sections 5.21(b) and 5.22(b), if applicable:
(1) during any Fiscal Quarter, a transfer of assets
or the discontinuance or elimination of a business line or
segment (in a single transaction or in a series of related
transactions) unless the aggregate assets to be so transferred
or utilized in a business line or segment to be discontinued,
when combined with all other assets transferred or utilized in
a business line or segment to be discontinued, in such Fiscal
Quarter and the most recent 3 consecutive Fiscal Quarters then
ended, either (x) constituted more than 10% of Consolidated
Total Assets measured as of the end of the immediately
preceding Fiscal Quarter for which the Borrower has supplied
financial statements pursuant to this Agreement, or (y)
contributed more than 10% of Consolidated Operating Income
during the most recent 4 consecutive Fiscal Quarters for which
the Borrower has supplied financial statements pursuant to
this Agreement (disregarding any Fiscal Quarter in which there
was an operating loss, on a consolidated basis); provided,
that, notwithstanding the foregoing, in no event shall any
disposition of assets pursuant to this Section 5.05(c)(1) be
permitted in the event that after such disposition,
Consolidated Total Assets shall be less than 90% of
Consolidated Total Assets measured as of the end of the Fiscal
Year ended October 3, 1999, or
(2) the Borrower may enter into an arrangement to
sell Receivables pursuant to a Receivables Securitization
Program if, as of the end of each of the 2 immediately
preceding Fiscal Quarters prior to entering into such
arrangement, the Leverage Ratio has been equal to or less than
2.50 to 1.00.
(a) Aggregate amount of assets sold during
Current Fiscal Quarter $____________
(b) Aggregate amount of other assets sold during
the 3 prior consecutive Fiscal Quarters $____________
(c) Sum of (a) and (b) $____________
(d) Consolidated Total Assets as of the end of the most
recent 4 consecutive Fiscal Quarters for which the
Borrower has supplied financial statements $____________
102
(e) 10% of (d) $____________
Limitation: (c) may not exceed (e)
(f) Portion of Consolidated Operating Income
contributed by assets in (a) $____________
(g) Portion of Consolidated Operating Income
contributed by assets in (b) $____________
(h) sum of (f) and (g) $____________
(i) Consolidated Operating Income during the most recent 4
consecutive Fiscal Quarters for which the Borrower has
supplied financial statements $____________
(j) 10% of (i) $____________
Limitation: (h) may not exceed (j)
(k) Consolidated Total Assets (excluding assets in
(a) and (b)) $____________
(l) Consolidated Total Assets as of the end
of the Fiscal Year ended October 3, 1999 $____________
(m) 90% of (l) $____________
Limitation: (k) may not be less than (m)
(n) Consolidated Total Debt $____________
(o) Consolidated Total EBITDA
(Schedule 1) $____________
(p) Ratio of (n) to (o) _____ to 1.00
Minimum Ratio to permit entering into arrangement for
sale of Receivables pursuant to a Receivables
Securitization Program 2.50 to 1.00
2. Investments (Section 5.15)
Neither the Borrower nor any of its Subsidiaries shall make Investments
in any Person except (i) existing Investments described in Schedule
5.15, (ii) loans or advances to employees not exceeding $1,000,000 in
the aggregate principal amount outstanding at any time, in each case
made in the ordinary course of business and consistent with practices
103
existing on the Closing Date; (iii) deposits required by landlords,
government agencies or public utilities; (iv) Investments in direct
obligations of the United States Government maturing within one year,
(v) Investments in certificates of deposit issued by a commercial bank
whose credit is satisfactory to the Administrative Agent, (vi)
Investments in commercial paper rated A1 or the equivalent thereof by
Standard & Poor's Rating Group, a division of XxXxxx-Xxxx, Inc. or P1
or the equivalent thereof by Xxxxx'x Investors Service, Inc. and in
either case maturing within 6 months after the date of acquisition,
(vii) Investments in 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 Standard & Poor's Rating Group
and Aa or the equivalent thereof by Xxxxx'x Investors Service, Inc.,
(viii) Investments in the Borrower, any Guarantor or any Significant
Direct Foreign Subsidiary and Investments made in the ordinary course
of business by a Foreign Subsidiary in another Foreign Subsidiary, (ix)
loans and advances to Subsidiaries which are evidenced by Pledged
Notes, (x) Investments in a Receivables Subsidiary pursuant to a
Receivables Securitization Program, (xi) Investments consisting of
acquisitions of stock or assets of any Person which is in the same or a
similar line of business to that of the Borrower (including, without
limitation, manufacturing, sales, marketing, distribution or other
activities relating to components or end-products used or produced in
the textile, fabric, garment or apparel industries) and which, as a
result of such acquisition, becomes a Subsidiary and executes a
Guaranty and Foreign Stock Pledge Agreements, as applicable (provided
that the Borrower can demonstrate pro forma compliance with any such
Investments exceeding $25,000,000), (xii) Investments in the
infastructure project in Tamaulipas, Mexico in an aggregate amount not
exceeding $12,500,000, (xiii) other Investments in Non-Significant
Foreign Subsidiaries in an aggregate amount which, together with
Investments not otherwise permitted by this Section, do not exceed
12.5% of Consolidated Tangible Net Worth and (xiv) other Investments in
an aggregate amount which does not exceed 5% of Consolidated Tangible
Net Worth; provided that after giving effect to the making of any
Investments permitted by clauses (xii), (xiii) and (xiv) of this
Section, if there are any Loans outstanding at that time, no Default
shall be in existence or be created thereby.
(a) loans or advances to employees $_______________
Limitation: $1,000,000
(b) Investments consisting of acquisitions of stock or
assets of any Person which is in the same or a similar
line of business $_______________1
--------
1 The Borrower must demonstrate pro forma compliance with any such Investments
exceeding $25,000,000.
104
(c) Investments in Non-Significant Foreign Subsidiaries
(together with Investments not otherwise permitted by
Section 5.15) $_______________
(d) Consolidated Tangible Net Worth
(Schedule 2) $_______________
(e) 12.5% of (d)
Limitation: (c) may not exceed (e)
(f) Other Investments not otherwise permitted $_______________
(g) 5% of (d) $_______________
Limitation: (f) may not exceed (g)
3. Liens (Section 5.16)
Neither the Borrower nor any Consolidated Subsidiary will create,
assume or suffer to exist any Lien on any asset now owned or hereafter
acquired by it, except: . . . (j) Liens not otherwise permitted by the
foregoing paragraphs of this Section securing Debt (other than
indebtedness represented by the Notes) in an aggregate principal amount
at any time outstanding not to exceed 10% of Consolidated Tangible Net
Worth.
None of the Borrower's or any Consolidated Subsidiary's property is
subject to any Lien securing Debt which is not permitted by paragraphs
(a) through (i) of Section 5.16, except for:
Description of Lien and Property Amount of Debt
Subject to same Secured
------------------------------------------------- -------
a. _______________________________________ $____________
b. _______________________________________ $____________
c. _______________________________________ $____________
d. _______________________________________ $____________
e. _______________________________________ $____________
f. _______________________________________ $____________
g. _______________________________________ $____________
Limitation 10% of Consolidated
Tangible Net Worth
105
4. Adjusted Interest Coverage Ratio (Section 5.17)
The Adjusted Interest Coverage Ratio for the Fiscal Quarter just ended
and the 3 immediately preceding Fiscal Quarters shall at no time be
less than (i) from the Closing Date through and including the first
Fiscal Quarter of the 2001 Fiscal Year, 1.05 to 1.00, (ii) from and
including the second Fiscal Quarter of the 2001 Fiscal Year through and
including the third Fiscal Quarter of the 2001 Fiscal Year, 1.25 to
1.0, (iii) from and including the fourth Fiscal Quarter of the 2001
Fiscal Year through and including the third Fiscal Quarter of the 2002
Fiscal Year, 1.75 to 1.0 and (iv) thereafter, 2.50 to 1.00.
(a) Consolidated Total EBITDA
(Schedule 1) $____________
(b) Capital Expenditures $____________
(c) Sum of (a) less (b) $____________
(d) Consolidated Interest Expense $____________
(e) Ratio of (c) to (d) ______ to 1.00
Minimum Ratio [1.05 to 1.00]
[1.25 to 1.00]
[1.75 to 1.00]
[2.50 to 1.00]
5. Restricted Payments (Section 5.18)
The Borrower will not declare or make any Restricted Payment during any
Fiscal Year unless, after giving effect thereto, the aggregate of all
Restricted Payments declared or made during such Fiscal Year does not
exceed $10,000,000 and no Default shall be in existence or be created
thereby.
(a) Aggregate of Restricted Payments in Fiscal Quarter just
ended $_______________
(b) Aggregate of Restricted Payments in prior Fiscal
Quarters of current Fiscal Year $_______________
(c) Sum of (a) and (b) $_______________
Limitation (c) may not exceed $10,000,000
106
6. Leverage Ratio (Section 5.19)
The Leverage Ratio for the Fiscal Quarter just ended and the
immediately preceding 3 Fiscal Quarters shall at all times be less than
(i) from the Closing Date through and including the second Fiscal
Quarter of the 2000 Fiscal Year, 3.65 to 1.00, (ii) during the third
Fiscal Quarter of the 2000 Fiscal Year, 3.50 to 1.0, (iii) from and
including the fourth Fiscal Quarter of the 2000 Fiscal Year through and
including the third Fiscal Quarter of the 2001 Fiscal Year, 3.00 to
1.0, (iv) from and including the fourth Fiscal Quarter of the 2001
Fiscal Year through and including the third Fiscal Quarter of the 2002
Fiscal Year, 2.75 to 1.0 and (v) thereafter, 2.50 to 1.00.
(a) Consolidated Total Debt $_______________
(b) Consolidated Total EBITDA
(Schedule 1) $_______________
(c) Ratio of (a) to (b) ______ to 1.00
Maximum Ratio [3.65 to 1.00]
[3.50 to 1.00]
[3.00 to 1.00]
[2.75 to 1.00]
[2.50 to 1.00]
7. Minimum Consolidated Tangible Net Worth (Section 5.20)
Consolidated Tangible Net Worth will at no time be less than
$245,000,000 plus the sum of (i) 50% of the cumulative Reported Net
Income of the Borrower and its Consolidated Subsidiaries during any
period after the Fiscal Quarter ending April 2, 2000 (taken as one
accounting period), calculated quarterly at the end of each Fiscal
Quarter but excluding from such calculations of Reported Net Income for
purposes of this clause (i), any Fiscal Quarter in which the Reported
Net Income of the Borrower and its Consolidated Subsidiaries is
negative, (ii) 100% of the cumulative Net Proceeds of Capital Stock
received during any period after the Fiscal Quarter ending April 2,
2000, calculated quarterly at the end of each Fiscal Quarter, and (iii)
100% of any equity resulting from the conversions of any Debt of the
Borrower or its Consolidated Subsidiaries.
(a) Consolidated Tangible Net Worth
(Schedule 2) $______________
(b) Reported Net Income2___________________ $______________
----------
2 Exclude any Fiscal Quarter in which Reported Net Income is negative, 100% of
cumulative Net Proceeds of Capital Stock received during any period after the
Fiscal Quarter ending April 2, 2000, and 100% of any equity resulting from the
conversions of any Debt.
107
(c) 50% of (b) $______________
(d) cumulative Net Proceeds of Capital Stock
received after Fiscal Quarter ending April 2, 2000 $______________
(e) equity resulting from conversions of Debt $______________
(f) Sum of (c), (d) (e) and $245,000,000 $______________
Limitation: (a) may not be less than (f)
8. Additional Debt (Section 5.24)
The Borrower shall not incur or permit to exist, or permit any Consolidated
Subsidiary other than the Receivables Subsidiary to incur or permit to exist,
any Debt other than:
(A) Debt under credit facilities in Mexico in the aggregate amount not
exceeding the Dollar equivalent of 66,000,000 Mexican pesos, calculated
based on the exchange rate as of the Closing Date, debt under credit
facilities in the United Kingdom in the aggregate amount not exceeding
the Dollar equivalent of 5,000,000 British pounds sterling, calculated
based on the exchange rate as of the Closing Date, term facilities to
be entered into in Portugal in the aggregate amount not exceeding the
Dollar equivalent of 900,000,000 Portuguese escudos, calculated based
on the exchange rate as of the Closing Date and other Debt under lines
of credit with a term less than 1 year not exceeding $10,000,000; and
(B) (i) Debt in existence on the Closing Date, and extensions,
renewals, refinancings or refundings thereof (provided that the amount
of such Debt is not increased); (ii) the Debt under this Agreement;
(iii) Debt permitted to be secured by Liens permitted by Section 5.16;
(iv) Debt of the types described in clause (vii) of the definition of
Debt which is incurred in the ordinary course of business in connection
with the sale or purchase of goods or to assure performance of an
obligation to a utility or a governmental entity or a worker's
compensation obligation; (v) Receivables Program Obligations; (vi) Debt
permitted by Section 5.15; (vii) obligations to reimburse any bank or
other Person in respect of amounts paid or to be paid under any
irrevocable standby letter of credit (excluding letters of credit
issued in support of trade payables arising from the import of goods)
in an aggregate amount at any time for all such standby letters of
credit not exceeding $5,000,000 and (viii) other Debt (including
amounts outstanding under committed lines of credit) with a term
greater than 1 year in an aggregate amount outstanding at any time
which, together with Debt under lines of credit described in clause (A)
above, does not exceed $50,000,000. The Borrower shall not permit the
Receivables Subsidiary to incur any Debt or other liabilities other
than in connection with the Receivables Securitization Program.
108
(a) Reimbursement obligations under standby letters of credit $________
Limitation: (a) may not exceed $5,000,000
(b) Debt under lines of credit with a term of
less than 1 year $________
Limitation: (b) may not exceed $10,000,000
(c) Debt (including under committed lines of credit) with
a term greater than 1 year $________
(d) Sum of (b) and (c) $________
Limitation: (d) may not exceed $50,000,000
109
Schedule 1
----------
CONSOLIDATED TOTAL EBITDA
-------------------------
(a) Consolidated Net Income for:
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
Total $______________
(b) Consolidated Interest Expense for:
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
Total $______________
(c) Amortization expense for:
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
Total $______________
(d) Depreciation expense for:
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
Total $______________
(e) Consolidated tax expense for:
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
Total $______________
110
(f) extraordinary gains and losses and other
non-operating gains and losses for:
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
Total $______________3
(g) non cash charges for
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
Total $______________4
CONSOLIDATED TOTAL EBITDA $______________
(sum of (a), plus (b), plus (c), plus (d),
plus (e), plus or less (f), plus (g))
----------
3 This amount may not exceed $2,500,000
4 This amount may not exceed $5,000,000
111
Schedule 2
----------
CONSOLIDATED TANGIBLE NET WORTH
-------------------------------
(a) Stockholders' Equity $_____________
(b) any surplus resulting from any write-up of
assets subsequent to [__________________] $_____________
(c) all assets which would be treated as
intangible assets $_____________
(d) any amount at which shares of Capital Stock
appear as an asset on the balance sheet (to the
extent not included in (c) $_____________
(e) loans or advances to stockholders, directors,
officers or employees $_____________
(f) deferred expenses (to the extent not
included in (c) $_____________
CONSOLIDATED TANGIBLE NET WORTH (sum
of (a) less (b), less (c), less (d), less (e), less (f)) $_____________
112
EXHIBIT G
---------
XXXXXXXX XXXXX, INC.
CLOSING CERTIFICATE
Reference is made to the Credit Agreement (the "Credit Agreement")
dated as of May 26, 2000, among Xxxxxxxx Xxxxx, Inc., the Banks listed therein,
Wachovia Bank, N.A., as Administrative Agent, First Union National Bank, as
Syndication Agent and Bank One, N.A., as Documentation Agent. Capitalized terms
used herein have the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement,__________________
, the duly authorized ___________________of Xxxxxxxx Xxxxx, Inc., hereby
certifies to the Administrative Agent and the Banks that (i) no Default has
occurred and is continuing as of the date hereof, and (ii) with respect to the
representations and warranties of the Borrower contained in Article IV, (x) if
they are expressly qualified by materiality, they are true on and as of the date
hereof, and (y) if they are not so qualified, they are true in all material
respects on and as of the date hereof.
Certified as of this May 26, 2000.
By:
------------------------------------------
Printed Name:
-----------------------------
Title:
------------------------------------
113
EXHIBIT H
---------
XXXXXXXX XXXXX, INC.
SECRETARY'S CERTIFICATE
The undersigned, ______________________, ____________________, Secretary of
Xxxxxxxx Xxxxx, Inc., a ____________________ corporation (the "Borrower"),
hereby certifies that [s]he has been duly elected, qualified and is acting in
such capacity and that, as such, [s]he is familiar with the facts herein
certified and is duly authorized to certify the same, and hereby further
certifies, in connection with the Credit Agreement dated as of May 26, 2000
among the Borrower, Wachovia Bank, N.A. as Administrative Agent and as a Bank,
and certain other Banks listed on the signature pages thereof, that:
1. ached hereto as Exhibit A is a complete and correct copy of the
Certificate of Incorporation of the Borrower as in full force and effect on the
date hereof as certified by the Secretary of State of the State of
_____________, the Borrower's state of incorporation.
2. ached hereto as Exhibit B is a complete and correct copy of the
Bylaws of the Borrower as in full force and effect on the date hereof.
3. ached hereto as Exhibit C is a complete and correct copy of the
resolutions duly adopted by the Board of Directors of the Borrower on __________
__, 2000 approving, and authorizing the execution and delivery of, the Credit
Agreement, the Notes and the other Loan Documents (as such terms are defined in
the Credit Agreement) to which the Borrower is a party. Such resolutions have
not been repealed or amended and are in full force and effect, and no other
resolutions or consents have been adopted by the Board of Directors of the
Borrower in connection therewith.
4. ________________, who is _________________ of the Borrower signed
the Credit Agreement, the Notes and the other Loan Documents to which the
Borrower is a party, was duly elected, qualified and acting as such at the time
[s]he signed the Credit Agreement, the Notes and other Loan Documents to which
the Borrower is a party, and [his/her] signature appearing on the Credit
Agreement, the Notes and the other Loan Documents to which the Borrower is a
party is [his/her] genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set [his/her] hand as of May
26, 2000.
----------------------------------------------
114
EXHIBIT I
---------
FORM OF MORTGAGE
----------------
[THIS MORTGAGE DRAFT WAS DRAFTED TO COMPLY WITH NORTH CAROLINA LAW AND IS
SUBJECT TO MODIFICATION TO COMPLY WITH THE LAWS OF THE OTHER STATES IN WHICH IT
WILL BE RECORDED. IN MORTGAGE TAX JURISDICTIONS, APPROPRIATE PROVISIONS WILL BE
ADDED TO DECREASE THE MORTGAGE TAX IMPACT AS APPROPRIATE]
Prepared By and
After Recording Return To:
Xxxxxxxx X. Xxxxxxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
DEED OF TRUST AND SECURITY AGREEMENT
------------------------------------
THIS INSTRUMENT (this "Instrument") is made and entered into as of this
_____ day of _______________, 2000, by XXXXXXXX XXXXX, INC., a Delaware
corporation, having a mailing address of 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000 ("Obligor"), in favor of New Salem, Inc., a North Carolina
corporation ("Trustee"), having an address of 000 Xxxxx Xxxx Xxxxxx,
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000, for the benefit of WACHOVIA BANK, N.A.
("Wachovia"), having a mailing address of 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxx, Xxxxxxx 00000, as collateral agent (together with its successors and
assigns, "Collateral Agent"), for itself, and for (i) The Prudential Insurance
Company of America, The Variable Annuity Life Insurance Company, American
General Annuity Insurance Company, Massachusetts Mutual Life Insurance Company
and C.M. Life Insurance Company (collectively, together with any other holders
of "Senior Notes", as defined below, from time to time pursuant to the "Note
Purchase Agreements", as defined below, the "Senior Note Holders") and (ii)
Wachovia Bank, N.A., First Union National Bank, Bank One, N.A., and Branch
Banking and Trust Company (collectively, together with any other Banks parties
from time to time to the "Credit Agreement" defined below, the "Banks"; the
Senior Note Holders and the Banks being collectively referred to, together with
any Cash Management Services Provider, as defined in the Intercreditor Agreement
described below, with respect to Cash Management Services Obligations, and any
Bank providing hedge arrangements giving rise to Hedge Obligations, as defined
in the Intercreditor Agreement, as "Lenders"), in connection with that certain
Intercreditor Agreement by and among Obligor, Collateral Agent and Lenders dated
May 26, 2000 (as amended or otherwise modified from time to time, the
"Intercreditor Agreement").
115
W I T N E S S E T H:
--------------------
That Obligor, in consideration of and as security for the debt
hereinafter described, and in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration, the sums advanced to Obligor in hand
paid by Collateral Agent, the receipt and sufficiency of which are hereby
acknowledged, does hereby irrevocably GRANT, BARGAIN, SELL AND CONVEY AND GRANT
the following properties (collectively, the "Property") unto (a) Trustee, its
successors and assigns, in trust, with power of sale and right of entry and
possession, except to those portions and components of the Property that
constitute personal property, and (b) Collateral Agent, its successors and
assigns, as secured party, a security interest as to those portions and
components of the Property that constitute personal property:
(a) All those tracts or parcels of land and easements more
particularly described in Exhibit "A" attached hereto and by this
reference made a part hereof (the "Land").
(b) All buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Land, and all gas and
electric fixtures, radiators, heaters, engines and machinery, boilers,
ranges, elevators and motors, plumbing and heating fixtures, carpeting
and other floor coverings, fire extinguishers and any other safety
equipment required by governmental regulation or law, washers, dryers,
water heaters, mirrors, mantels, air conditioning apparatus,
refrigerating plants, refrigerators, cooking apparatus and
appurtenances, window screens, awnings and storm sashes, which are or
shall be owned by Obligor and attached to said buildings, structures or
improvements and all other furnishings, furniture, fixtures, machinery,
equipment, appliances, vehicles, building supplies and materials, books
and records, chattels, inventory, accounts, farm products, consumer
goods, general intangibles and personal property of every kind and
nature whatsoever now or hereafter owned by Obligor and located in, on
or about, or used or intended to be used with or in connection with the
use, operation or enjoyment of the Property, including all extensions,
additions, improvements, betterments, after-acquired property,
renewals, replacements and substitutions, or proceeds from a permitted
sale of any of the foregoing, and all the right, title and interest of
Obligor in any such furnishings, furniture, fixtures, machinery,
equipment, appliances, vehicles and personal property subject to or
covered by any prior security agreement, conditional sales contract,
chattel mortgage or similar lien or claim, together with the benefit of
any deposits or payments now or hereafter made by Obligor or on behalf
of Obligor, all of which are hereby declared and shall be deemed to be
fixtures and accessions to the Land and a part of the Property as
between the parties hereto and all persons claiming by, through or
under them, and which shall be deemed to be a portion of the security
for the indebtedness herein described and to be secured by this
Instrument.
(c) All easements, rights-of-way, strips and gores of land,
vaults, streets, ways, alleys, passages, sewer rights, waters, water
courses, water rights and powers, minerals, flowers, shrubs, crops,
trees, timber and other emblements now or hereafter located on the Land
or under or above the same or any part or parcel thereof, and all
estates, rights, titles, interests, privileges, liberties, tenements,
hereditaments and appurtenances, reversion and reversions, remainder
and remainders, whatsoever, in any way belonging, relating or
116
appertaining to the Land or any part thereof, or which hereafter shall
in any way belong, relate or be appurtenant thereto, whether now owned
or hereafter acquired by Obligor.
(d) All income, rents, issues, profits and revenues of the
Property from time to time accruing (including, without limitation, all
payments under leases or tenancies, proceeds of insurance, condemnation
payments, tenant security deposits whether held by Obligor or in a
trust account, and escrow funds), and all the estate, right, title,
interest, property, possession, claim and demand whatsoever at law, as
well as in equity, of Obligor of, in and to the same; reserving only
the right to Obligor to collect the same (other than insurance proceeds
and condemnation payments) so long as Obligor is not in default
hereunder.
(e) All other "Collateral", as defined in that certain Credit
Agreement by and among by Obligor, First Union National Bank, as
Syndication Agent, Bank One, N.A., as Documentation Agent, and the
other Banks, and Wachovia, as Administrative Agent, dated May 26, 2000
(as amended or supplemented from time to time, the "Credit Agreement").
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof, to the use, benefit and behoof of Trustee or Collateral
Agent for the ratable benefit of Lenders and their respective successors and
assigns, IN FEE SIMPLE forever upon the trust, terms and conditions contained in
this Instrument; and Obligor covenants that Obligor is lawfully seized and
possessed of the Property as aforesaid, and has good right to convey the same,
that the same is unencumbered except for those matters expressly set forth in
Exhibit "B" attached hereto and by this reference made a part hereof, and that
Obligor does warrant and will forever defend the title thereto against the
claims of all persons whomsoever, except as to those matters set forth in said
Exhibit "B" attached hereto.
This Instrument is given to secure the following described indebtedness
(collectively, the "Secured Obligations"):
(f) The debt and interest thereon evidenced by: (A) (i) the
notes (collectively, the "Senior Notes" issued pursuant to the Note
Purchase Agreements to the Senior Note Holders, in the following
original amounts: (i) the THREE MILLION AND NO/100 DOLLARS
($3,000,000.00) 7.06% Senior Note and NINETY-SEVEN MILLION AND NO/100
DOLLARS ($97,000,000.00) 7.06% Senior Note executed by Obligor in favor
of The Prudential Insurance Company of America; (ii) the TEN MILLION
AND NO/100 DOLLARS ($10,000,000.00) 7.06% Senior Note executed by
Obligor in favor of The Variable Annuity Life Insurance Company; (iii)
the FIFTEEN MILLION AND NO/100 DOLLARS ($15,000,000.00) 7.06% Senior
Note executed by Obligor in favor of American General Annuity Insurance
Company; (iv) the EIGHT MILLION AND NO/100 DOLLARS ($8,500,000.00)
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7.06% Senior Note, the FIVE MILLION, SIX HUNDRED THOUSAND AND NO/100
DOLLARS ($5,600,000.00) 7.06% Senior Note and the FOUR MILLION, NINE
HUNDRED THOUSAND AND NO/100 DOLLARS ($4,900,000.00) 7.06% Senior Note
executed by Obligor in favor of Massachusetts Mutual Life Insurance
Company; (v) the ONE MILLION AND NO/ 100 DOLLARS ($1,000,000.00) 7.06%
Senior Note executed by Obligor in favor of C. M. Life Insurance
Company, all such Senior Notes being dated as of December 18, 1998,
together with any amendments, supplements, renewals, replacements or
substitutions of any of such Senior Notes; and (B) all of the "Notes",
as defined in the Credit Agreement, held by the Banks from time to time
under the Credit Agreement (collectively, the "Bank Notes"), in the
aggregate original principal amount of ONE HUNDRED THIRTY MILLION and
NO/100 DOLLARS ($130,000,000.00), together with any amendments,
supplements, renewals, replacements or substitutions of any of such
Bank Notes. The Senior Notes and the Bank Notes, as any of them may be
amended or otherwise modified from time to time, are herein
collectively referred to as the "Notes".
(g) The reimbursement and other obligations owing by Obligor
to Collateral Agent and/or Lenders with respect to any letters of
credit issued from time to time for the account of Obligor.
(h) All Cash Management Services Obligations and Hedge
Obligations, subject in each case to the limitations contained in the
Intercreditor Agreement.
(i) All other "Secured Obligations" (as defined in the Credit
Agreement), including, without limitation, all principal, interest,
fees, expenses, costs, yield maintenance indemnification amounts, other
indemnification amounts and other obligations thereunder.
(j) All other obligations under the Note Purchase Agreements
between Obligor and the Senior Note Holders, each dated as of December
18, 1998 (as amended or supplemented from time to time, the "Note
Purchase Agreements"), including, without limitation, all principal,
interest, "Yield Maintenance Amount", as defined therein, fees,
expenses, costs, indemnification amounts and other obligations
thereunder.
(k) Any and all additional advances made by the Collateral
Agent or by any Lender to protect or preserve the Property or the lien
and security title hereof in and to the Property, or for taxes,
assessments or insurance premiums as hereinafter provided (whether or
not the Obligor remains the owner of the Property at the time of such
advances).
(l) Any and all other indebtedness now or hereafter owing by
Obligor to Collateral Agent or any Lender pursuant to the Note Purchase
Agreements or the Credit Agreement, subject to the Intercreditor
Agreement, whether now existing or hereafter arising or incurred,
however evidenced or incurred, whether express or implied, direct or
indirect, absolute or contingent, due or to become due, and all
renewals, modifications, consolidations, replacements and extensions
thereof.
It is the intention of the parties hereto that this Instrument is made
and executed to comply with the provisions of N.C.G.S. 45-67 et seq., and shall
secure any and all present and future Secured Obligations which Obligor now or
may hereafter owe to Collateral Agent or any of the Lenders (but in no event
incurred more than fifteen (15) years after the date hereof), including without
limitation, any future loans and advances made by Collateral Agent or any of the
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Lenders pursuant to the Notes, Note Purchase Agreements or the Credit Agreement
to or for the benefit of Obligor, up to a maximum aggregate amount of principal
Secured Obligations outstanding at any one time of Two Hundred Sixty-Five
Million and No/100 Dollars ($265,000,000.00). The amount of present Secured
Obligations of Obligor to Collateral Agent and Lenders secured hereby is in the
sum of $265,000,000.00 as of the date hereof, and the amount of all present and
future Secured Obligations of Obligor to Collateral Agent and Lenders secured
hereby is in the sum of $265,000,000.00 plus interest, costs and advances made
by Collateral Agent or any of the Lenders to protect or preserve the Property or
the lien hereof on the Property, or for taxes, assessments or insurance premiums
as herein provided. Pursuant to N.C.G.S. 45-68(2), Obligor, Collateral Agent and
Lenders agree that at the time any Secured Obligations are incurred, it shall
not be necessary for such Secured Obligations to be evidenced by any of the
Notes or any other written instrument or notation signed by Obligor and
stipulating that such Secured Obligations is secured by this Instrument.
Should the Secured Obligations secured by this Instrument be paid
according to the tenor and effect thereof when the same shall become due and
payable, and should Obligor perform all covenants herein contained in a timely
manner, and should any obligations of Collateral Agent and Lenders to make
additional advances under the Note Purchase Agreement and the Credit Agreement
have been terminated in writing by Collateral Agent and Lenders, then this
Instrument shall be cancelled and surrendered upon the request and at the
expense of Obligor.
Obligor hereby further covenants and agrees with Trustee and Collateral
Agent as follows:
ARTICLE 1
1.01 Payment of Secured Obligations. Obligor will pay the Secured
Obligations according to the tenor thereof and all other sums now or hereafter
secured hereby promptly as the same shall become due.
1.02 Taxes, Liens and Other Charges.
(a) Obligor will pay, before the same become delinquent, all
taxes, liens, assessments and charges of every character including all
utility charges, whether public or private, already levied or assessed
or that may hereafter be levied or assessed upon or against the
Property; and within ten (10) days of a demand will furnish Collateral
Agent receipted bills evidencing such payment. Nothing contained herein
shall require the payment or discharge of any such tax, lien,
assessment or charge by Obligor for so long as Obligor shall in good
faith and at its own expense contest the amount or validity thereof by
appropriate legal proceedings and provided such contest shall prevent
(i) the collection thereof or other realization thereon and the sale or
forfeiture of the Property or any part thereof to satisfy the same, and
(ii) the enforcement thereof against Obligor or the Property or any
part thereof, and provided Obligor first deposits with Collateral
Agent, in escrow such sums or other security as Collateral Agent may
reasonably require to assure Collateral Agent of the availability of
sufficient funds to pay such tax, lien, assessment or charge if and
when same is finally determined to be due.
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(b) Obligor will not suffer any mechanic's, materialman's,
laborer's, statutory or other lien to be created and to remain
outstanding upon all or any part of the Property.
1.03 Insurance.
(a) Obligor shall procure for, deliver to and maintain for the
benefit of Collateral Agent and Lenders during the term of this
Instrument, insurance policies, which shall at all times be kept in
full force and effect, issued by insurance companies, in amounts, in
form and substance, and with expiration dates acceptable to Collateral
Agent and containing non-contributory standard mortgagee clauses, their
equivalent or a satisfactory mortgagee loss payable endorsement in
favor of Collateral Agent, providing the following types of insurance
on the Property:
(i) insurance against loss or damage by fire,
lightning, vandalism, malicious mischief and flood (if the
Land is in an area which is considered a flood risk area by
the U.S. Department of Housing and Urban Development), and
against such other hazards as are presently included in
so-called "all risk replacement cost insurance" and against
such other insurable hazards as, under good insurance
practices, from time to time are insured against for
properties of similar character and location; the amount of
which insurance shall be not less than one hundred percent
(100%) of the full replacement cost of the Property without
deduction for depreciation; and which policies of insurance
shall contain satisfactory replacement cost endorsements;
(ii) when obtainable from the United States of
America or any agency or instrumentality thereof, when and as
reasonably required by Collateral Agent, and which are
commonly insured against by prudent owners and are generally
available for properties similar to the Property in the
vicinity of the Property, war risk insurance in the maximum
amount available up to an amount equal to the replacement cost
of the Property;
(iii) rent or business interruption insurance against
loss of income arising out of damage or destruction by fire,
lightning, vandalism, malicious mischief and flood and such
other hazards as are presently included in so-called "all risk
replacement cost insurance" in the amount equal to the gross
annual income derived by Obligor from the Property; and
(iv) such other insurance on the Property or any
replacements or substitutions therefor and in such amounts as
may from time to time be reasonably required by Collateral
Agent against other insurable casualties which at the time are
commonly insured against in the case of premises similarly
situated, due regard being given to the height and type of the
improvements, their construction, location, use and occupancy,
or any replacements or substitutions therefor.
Insurance policies shall name as the insured parties Obligor and Collateral
Agent, as collateral agent for itself and the Lenders, as their interests may
appear.
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(b) Except in connection with insurance claims made by Obligor
prior to the date of the Credit Agreement, Collateral Agent is hereby
authorized and empowered, at its option, to adjust or compromise any
loss under any insurance policies maintained pursuant to this Paragraph
1.03, and to collect and receive the proceeds from any such policy or
policies. Each insurance company is hereby authorized and directed to
make payment for all such losses directly to Collateral Agent, instead
of to Obligor and Collateral Agent jointly. In the event any insurance
company fails to disburse directly and solely to Collateral Agent but
disburses instead either solely to Obligor or to Obligor and Collateral
Agent jointly, Obligor agrees immediately to endorse and transfer such
proceeds to Collateral Agent. Upon the failure of Obligor to endorse
and transfer such proceeds as aforesaid, Collateral Agent may execute
such endorsements or transfers for and in the name of Obligor and
Obligor hereby irrevocably appoints Collateral Agent as Obligor's agent
and attorney-in-fact so to do. After deducting from said insurance
proceeds all of its expenses incurred in the collection and
administration of such sums, including attorneys' fees, Collateral
Agent may apply the net proceeds or any part thereof, at its option,
(i) to the payment of the Secured Obligations hereby secured, whether
or not due and in whatever order Collateral Agent elects, (ii) to the
repair and/or restoration of the Property, or (iii) for any other
purposes or objects for which Collateral Agent is entitled to advance
funds under this Instrument; all without affecting the lien of this
Instrument. Collateral Agent shall not be held responsible for any
failure to collect any insurance proceeds due under the terms of any
policy regardless of the cause of such failure. Notwithstanding the
foregoing, if there is not then existing an Event of Default, Obligor
may itself adjust and collect for any losses arising out of a single
occurrence aggregating not in excess of One Million and No/100 Dollars
($1,000,000.00).
(c) All required policies of insurance, together with evidence
of the payment of current premiums therefor, shall be delivered to
Collateral Agent and shall provide that Collateral Agent shall receive
at least thirty (30) days advance written notice prior to cancellation,
amendment or termination of any such insurance policy. At least ten
(10) days prior to the expiration date of each policy maintained
pursuant to this Paragraph 1.03, a renewal or replacement thereof or
evidence verifying the renewal or replacement of such insurance policy,
satisfactory to Collateral Agent shall be delivered to Collateral
Agent. Obligor shall deliver to Collateral Agent receipts evidencing
the payment for all such insurance policies and renewals or
replacements. The delivery of any insurance policies hereunder shall
constitute an assignment of all unearned premiums as further security
hereunder. In the event of the foreclosure of this Instrument or any
other transfer of title to the Property in extinguishment of the
Secured Obligations secured hereby, all right, title and interest of
Obligor in and to all insurance policies then in force shall pass to
the purchaser or Collateral Agent.
1.04 Condemnation. If all or any portion of the Property shall be
damaged or taken through condemnation (which term when used in this Instrument
shall include any damage or taking by any governmental authority or any transfer
by private sale in lieu thereof), either temporarily or permanently, and if a
Default or Event of Default is in existence, then Collateral Agent shall be
entitled to receive all compensation, awards and other payments or relief
thereof, and Collateral Agent is hereby authorized, at its option, to commence,
appear in and prosecute, in its own or in Obligor's name, any action or
proceeding relating to any condemnation, and to settle or compromise any claim
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in connection therewith. All such compensation, awards, damages, claims, rights
of action and proceeds and the right thereto are hereby assigned by Obligor to
Collateral Agent. After deducting from said condemnation proceeds all of its
expenses incurred in the collection and administration of such sums, including
attorney's fees, Collateral Agent may apply the net proceeds or any part
thereof, at its option, (a) to the payment of the Secured Obligations hereby
secured, whether or not due and in accordance with the terms of the
Intercreditor Agreement, (b) to the repair and/or restoration of the Property or
(c) for any other purposes or objects for which Collateral Agent is entitled to
advance funds under this Instrument, all without affecting the lien of this
Instrument; and any balance of such monies then remaining shall be paid to
Obligor. Obligor agrees to execute such further assignment of any compensation,
awards, damages, claims, rights of action and proceeds as Collateral Agent may
require. Notwithstanding the foregoing, if there is not then existing an Event
of Default and if the aggregate of net condemnation proceeds arising out of a
single occurrence of condemnation is not in excess of One Hundred Thousand and
No/100 Dollars ($100,000.00) Collateral Agent shall disburse the net
condemnation proceeds to Obligor for the repair and/or restoration of the
Property.
1.05 Care, Use and Management of Property.
(a) Obligor will keep the buildings, roads and walkways,
landscaping and all other improvements of any kind now or hereafter
erected on the Land or any part thereof in good condition and repair,
ordinary wear and tear excepted, will not commit or suffer any waste
that materially and adversely affects the Property and will not do or
suffer to be done anything which will increase the risk of fire or
other hazard to the Property or any part thereof.
(b) Obligor will not remove or demolish nor materially alter
the structural character of any building located on the Land without
the written consent of Collateral Agent.
(c) If the Property or any part thereof is materially damaged
by fire or any other cause, Obligor will give immediate written notice
thereof to Collateral Agent.
(d) Each Lender or its representative is hereby authorized to
enter upon and inspect the Property at any time during normal business
hours upon reasonable prior notice.
(e) Obligor will promptly comply in all material respects with
all present and future laws, ordinances, rules and regulations of any
governmental authority affecting the Property or any part thereof.
(f) If all or any part of the Property shall be damaged by
fire or other casualty, Obligor will promptly restore the Property to
the equivalent of its original condition; and if a part of the Property
shall be damaged through condemnation, Obligor will promptly restore,
repair or alter the remaining portions of the Property in a manner
satisfactory to the Required Lenders (as defined in the Intercreditor
Agreement). Notwithstanding the foregoing, Obligor shall not be
obligated to so restore unless in each instance, Collateral Agent
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agrees to make available to Obligor (pursuant to a procedure
satisfactory to Collateral Agent) any net insurance or condemnation
proceeds actually received by Collateral Agent hereunder in connection
with such casualty loss or condemnation, to the extent such proceeds
are required to defray the expense of such restoration; provided,
however, that the insufficiency of any such insurance or condemnation
proceeds to defray the entire expense of restoration shall in no way
relieve Obligor of its obligation to restore. In the event all or any
portion of the Property shall be damaged or destroyed by fire or other
casualty or by condemnation, Obligor shall promptly deposit with
Collateral Agent a sum equal to the amount by which the estimated cost
of the restoration of the Property (as determined by Collateral Agent
in its good faith judgment) exceeds the actual net insurance or
condemnation proceeds received by Collateral Agent in connection with
such damage or destruction, which sum shall be made available to
Obligor for payment or reimbursement of the expenses incurred by
Obligor in connection with the restoration of the Property so long as
there is not then existing an Event of Default. To the extent the funds
deposited by Obligor with Collateral Agent for the restoration of the
Property exceed the actual sums required by Collateral Agent to be made
available to Obligor pursuant to the preceding sentence, so long as
there is not then existing an Event of Default, such excess funds will
be disbursed to Obligor after the restoration of the Property is
completed.
1.06 Leases and Other Agreements Affecting Property.
(a) Obligor will duly and punctually perform all terms,
covenants, conditions and agreements binding upon it under any lease or
any other agreement of any nature whatsoever which involves or affects
the Property or any part thereof. Obligor will, at the request of
Collateral Agent, furnish Collateral Agent with executed copies of all
leases now or hereafter created upon the Property or any part thereof
and, subject to Section 5.05 of the Credit Agreement, all leases now or
hereafter entered into will be in form and substance subject to the
prior approval of Collateral Agent. Subject to Section 5.05 of the
Credit Agreement, Obligor will not, without the express written consent
of the Required Lenders, modify, surrender or terminate, either orally
or in writing, any lease now existing or hereafter created upon the
Property or any part thereof, nor will Obligor permit an assignment or
a subletting by any tenant without the prior express written consent of
Collateral Agent. In order to further secure payment of the Secured
Obligations and the observance, performance and discharge of Obligor's
obligations, Obligor hereby assigns, transfers and sets over under
Collateral Agent all of Obligor's right, title and interest in, to and
under all leases affecting the Property or any part thereof and in and
to all of the rents, issues, profits, revenues, awards and other
benefits now or hereafter arising from the use and enjoyment of the
Property or any part thereof; reserving only the right to Obligor to
collect the same so long as Obligor is not in default hereunder.
(b) All leases on the Property must be subordinate to the lien
of this Instrument unless Collateral Agent otherwise specifies, in
which case such specific leases shall be made superior to this
Instrument. Collateral Agent shall be entitled to reasonably require
that certain leases be made superior to this Instrument but that
certain provisions of such superior leases be made subject to this
Instrument. Collateral Agent shall also be entitled to require, and
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Obligor shall use its best efforts to obtain, the execution of
subordination and attornment agreements from any tenants specified by
Collateral Agent. Any form lease hereafter used by Obligor shall be
first submitted to and approved by Collateral Agent. Obligor hereby
authorizes and directs each present and future tenant of the Property
to pay to Collateral Agent all rents and any other sums due Obligor as
landlord and to perform for the direct benefit of Collateral Agent any
other obligations of such tenant to Obligor as landlord, as if
Collateral Agent were the landlord under such tenant's lease,
immediately upon receipt of a written demand by Collateral Agent to
make such payment or perform such obligation during the existence of a
Default or Event of Default. No such demand by Collateral Agent shall
constitute or be deemed to constitute any assumption by Collateral
Agent of any obligations of the landlord under such tenant's lease.
Subject only to compliance by Collateral Agent with the provisions of
Paragraph 2.01, no such demand by Collateral Agent shall constitute or
be deemed to constitute any wrongful interference by Collateral Agent
in the affairs or business relationships for ascertaining whether any
such demand by Collateral Agent is authorized or whether a default by
Obligor has occurred under this Instrument. Obligor hereby waives any
right, claim or action Obligor may now or hereafter have against any
such tenant by reason of such tenant's payment to or performance for
Collateral Agent as described above, and any such payment to or
performance for Collateral Agent shall discharge the obligation of such
tenant to make such payment to, or perform such obligation for,
Obligor.
1.07 Security Agreement. Insofar as the machinery, apparatus,
equipment, fittings, fixtures, building supplies and materials, and articles of
personal property either referred to or described in this Instrument, or in any
way connected with the use and enjoyment of the Property is concerned, this
Instrument is hereby made and declared to be a security agreement, encumbering
each and every item of personal property included herein, in compliance with the
provisions of the Uniform Commercial Code as enacted in the state wherein the
Land is situated. A financing statement or statements reciting this Instrument
to be a security agreement, affecting all of said personal property
aforementioned, shall be executed by Obligor and Collateral Agent and
appropriately filed. The remedies for any violation of the covenants, terms and
conditions of the security agreement herein contained shall be (i) as prescribed
herein, or (ii) as prescribed by general law, or (iii) as prescribed by the
specific statutory consequences now or hereafter enacted and specified in said
Uniform Commercial Code, all at Collateral Agent's sole election. Obligor and
Collateral Agent agree that the filing of such financing statement(s) in the
records normally having to do with personal property shall never be construed as
in any way derogating from or impairing this declaration and hereby stated
intention of Obligor and Collateral Agent that everything used in connection
with the production of income from the Property and/or adapted for use therein
and/or which is described or reflected in this Instrument, is, and at all times
and for all purposes and in all proceedings both legal or equitable shall be,
regarded as part of the real estate irrespective of whether (i) any such item is
physically attached to the improvements, (ii) serial numbers are used for the
better identification of certain items capable of being thus identified in a
recital contained herein, or (iii) any such item is referred to or reflected in
any such financing statement(s) so filed at any time. Similarly, the mention in
any such financing statement(s) of the rights in and to (1) the proceeds of any
fire and/or hazard insurance policy, or (2) any award in eminent domain
proceedings for a taking or for loss of value, or (3) Obligor's interest as
lessor in any present or future lease or rights to income growing out of the use
and/or occupancy of the Property, whether pursuant to lease or otherwise, shall
never be construed as in anyway altering any of the rights of Collateral Agent
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as determined by this Instrument or impugning the priority of Collateral Agent's
lien granted hereby or by any other recorded document, but such mention in such
financing statement(s) is declared to be for the protection of Collateral Agent
in the event any court shall at any time hold with respect to the foregoing (1),
(2) or (3), that notice of Collateral Agent's priority of interest to be
effective against a particular class of persons, must be filed in the Uniform
Commercial Code records.
1.08 Further Assurances; After-Acquired Property. At any time, and from
time to time, upon request by Collateral Agent, Obligor will make, execute and
deliver or cause to be made, executed and delivered, to Collateral Agent and,
where appropriate, cause to be recorded and/or filed and from time to time
thereafter to be rerecorded and/or refiled at such time and in such offices and
places as shall be deemed desirable by Collateral Agent, any and all such other
and further deeds to secure debt, deeds of trust, security agreements, financing
statements, continuation statements, instruments of further assurance,
certificates and other documents as may, in the opinion of Collateral Agent, be
necessary or desirable in order to effectuate, complete, or perfect, or to
continue and preserve (a) the obligation of Obligor under the Notes, the Note
Purchase Agreements and the Credit Agreement and under this Instrument and (b)
the lien of this Instrument as a first and prior lien upon and security title in
and to all of the Property, whether now owned or hereafter acquired by Obligor.
Upon any failure by Obligor so to do, Collateral Agent may make, execute,
record, file, re-record and/or refile any and all such deeds to secure debt,
deeds of trust, security agreements, financing statements, continuation
statements, instruments, certificates, and documents for and in the name of
Obligor and Obligor hereby irrevocably appoints Collateral Agent the agent and
attorney-in-fact of Obligor so to do. The lien hereof will automatically attach,
without further act, to all after acquired property attached to and/or used in
the operation of the Property or any part thereof.
1.09 Expenses. Obligor will pay or reimburse Trustee or Collateral
Agent, upon demand therefor, for all attorney's fees, costs and expenses
incurred by Trustee or Collateral Agent in any suit, action, legal proceeding or
dispute of any kind in which Trustee, Lenders or Collateral Agent is made a
party or appears as party plaintiff or defendant, affecting or arising in
connection with the Secured Obligations secured hereby, this Instrument or the
interest created herein, or the Property, including, but not limited to, the
exercise of the power of sale contained in this Instrument, any condemnation
action involving the Property or any action to protect the security hereof; and
any such amounts paid by Trustee, Lenders or Collateral Agent shall be added to
the Secured Obligations secured by the lien of this Instrument.
1.10 Subrogation. Collateral Agent shall be subrogated to the claims
and liens of all parties whose claims or liens are discharged or paid with the
proceeds of the Secured Obligations secured hereby.
1.11 Limit of Validity. If from any circumstances whatsoever
fulfillment of any provision of this Instrument or of the Notes, at the time
performance of such provision shall be due, shall involve transcending the limit
of validity presently prescribed by any applicable usury statute or any other
applicable law, with regard to obligations of like character and amount, then
ipso facto the obligation to be fulfilled shall be reduced to the limit of such
validity, so that in no event shall any exaction be possible under this
Instrument or under the Note that is in excess of the current limit of such
validity, but such obligation shall be fulfilled to the limit of such validity.
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The provisions of this Paragraph 1.11 shall control every other provision of
this Instrument and of the Notes.
1.12 Use of Property. Obligor shall not be permitted to materially
alter or change the use of the Property or to abandon the Property without the
prior written consent of Collateral Agent.
1.13 Conveyance of Property. Obligor hereby acknowledges to Collateral
Agent that (a) the identity and expertise of Obligor was and continues to be a
material circumstance upon which Collateral Agent has relied in connection with,
and which constitute valuable consideration to Collateral Agent for, the
extending to Obligor of the loan evidenced by the Notes, and (b) any change in
such identity or expertise could materially impair or jeopardize the security
for the payment of the Secured Obligations granted to Collateral Agent by this
Instrument. Obligor therefore covenants and agrees with Collateral Agent, as
part of the consideration for the extending to Obligor of the loans evidenced by
the Notes, that, subject to Section 5.05 of the Credit Agreement, Obligor shall
not convey, transfer, assign, further encumber or pledge any or all of its
interest in the Property without the prior written consent of Collateral Agent.
ARTICLE 2
---------
2.01 Events of Default. The terms "Default", "Event of Default" or
"Events of Default", wherever used in this Instrument, shall have the meaning
provided for in the Intercreditor Agreement and shall include the failure of
Obligor to perform any of its obligations under this Instrument, which failure
(except in the event of a violation of the provisions set forth in Sections
1.03, 1.05 or 1.13 hereof) shall not have been cured within thirty (30) days
after the earlier to occur of (i) written notice thereof given to Obligor by
Collateral Agent or any Lender, or (ii) a responsible officer of Obligor
otherwise becoming aware of any such failure; provided, however, immediately
upon the occurrence of an Event of Default, and without regard to any time
periods or opportunities to cure described herein or in the Note Purchase
Agreements, the Credit Agreement or any of the Security Documents, Collateral
Agent may make written demand upon any and all tenants of the Property to pay to
Collateral Agent all rents and other sums and to perform for the direct benefit
of Collateral Agent all obligations of such tenants, as provided in Paragraph
1.06.
2.02 Acceleration of Maturity. If an Event of Default shall have
occurred and be continuing, then the entire Secured Obligations secured hereby
shall, subject to the terms of the Intercreditor Agreement, immediately become
due and payable without notice or demand, time being of the essence of this
Instrument.
2.03 Right to Enter and Take Possession.
(a) If an Event of Default shall have occurred and be
continuing, Obligor upon demand of Collateral Agent, shall forthwith
surrender to Collateral Agent the actual possession of the Property and
if, and to the extent, permitted by law, Collateral Agent itself, or by
such officers or agents as it may appoint, may enter and take
possession of all the Property without the appointment of a receiver,
or an application therefor, and may exclude Obligor and its agents and
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employees wholly therefrom, and may have joint access with Obligor to
the books, papers and accounts of Obligor.
(b) If Obligor shall for any reason fail to surrender or
deliver the Property or any part thereof after such demand by
Collateral Agent, Collateral Agent may obtain a judgment or decree
conferring upon Collateral Agent the right to immediate possession or
requiring Obligor to deliver immediate possession of the Property to
Collateral Agent. Obligor will pay to Collateral Agent, upon demand,
all expenses of obtaining such judgment or decree, including reasonable
compensation to Collateral Agent, its attorneys and agents; and all
such expenses and compensation shall, until paid, be secured by the
lien of this Instrument.
(c) Upon every such entering upon or taking of possession,
Collateral Agent may hold, store, use, operate, manage and control the
Property and conduct the business thereof, and, from time to time (i)
make all necessary and proper maintenance, repairs, renewals,
replacements, additions, betterments and improvements thereto and
thereon and purchase or otherwise acquire additional fixtures,
personalty and other property; (ii) insure or keep the Property
insured; (iii) manage and operate the Property and exercise all the
rights and powers of Obligor to the same extent as Obligor could in its
own name or otherwise with respect to the same; and (iv) enter into any
and all agreements with respect to the exercise by others of any of the
powers herein granted Collateral Agent, all as Collateral Agent from
time to time may determine to be necessary. Collateral Agent may
collect and receive all the rents, issues, profits and revenues from
the Property, including those past due as well as those accruing
thereafter, and, after deducting (1) all expenses of taking, holding,
managing and operating the Property (including compensation for the
services of all persons employed for such purposes); (2) the cost of
all such maintenance, repairs, renewals, replacements, additions,
betterments, improvements, purchases and acquisitions; (3) the cost of
such insurance; (4) such taxes, assessments and other similar charges
as Collateral Agent may at its option pay; (5) other proper charges
upon the Property or any part thereof; and (6) the reasonable
compensation, expenses and disbursements of the attorneys and agents of
Collateral Agent, Collateral Agent shall apply the remainder of the
monies and proceeds so received by Collateral Agent, first to the
payment of accrued interest; second to the payment of deposits (as may
be required in Paragraph 1.04); and third to the payment of overdue
installments of principal. Collateral Agent shall have no obligation to
discharge any duties of a landlord to any tenant or to incur any
liability as a result of any exercise by Collateral Agent of any rights
under this Instrument or otherwise. Collateral Agent shall not be
liable for any failure to collect rents, issues, profits and revenues
from the Property, nor shall Collateral Agent be liable to account for
any such rents, issues, profits or revenues unless actually received by
Collateral Agent.
(d) Whenever all that is due upon the Secured Obligations and
under any of the terms, covenants, conditions and agreements of this
Instrument, shall have been paid and all Events of Default made good,
Collateral Agent shall surrender possession of the Property to Obligor,
its successors or assigns. The same right of taking possession,
however, shall exist if any subsequent Event of Default shall occur and
be continuing.
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2.04 Performance by Collateral Agent. If Obligor shall Default in the
payment, performance or observance of any term, covenant or condition of this
Instrument, Collateral Agent may, so long as such Default continues, at its
option, pay, perform or observe the same, and all payments made or costs or
expenses incurred by Collateral Agent in connection therewith, shall be secured
hereby and shall be, upon demand, immediately repaid by Obligor to Collateral
Agent with interest thereon at the "Default Rate", as defined in the Credit
Agreement. Collateral Agent shall be the sole judge of the necessity for any
such actions and of the amounts to be paid. Collateral Agent is hereby empowered
to enter and to authorize others to enter upon the Land or any part thereof for
the purpose of performing or observing any such defaulted term, covenant or
condition without thereby becoming liable to Obligor or any person in possession
holding under Obligor.
2.05 Receiver. If an Event of Default shall have occurred and be
continuing, Collateral Agent, upon application to a court of competent
jurisdiction, shall be entitled as a matter of strict right without notice and
without regard to the occupancy or value of any security for the Secured
Obligations secured hereby or the solvency of any party bound for its payment,
to the appointment of a receiver to take possession of and to operate the
Property and to collect and apply the rents, issues, profits and revenues
thereof. The receiver shall have all of the rights and powers permitted under
the laws of the State of North Carolina. Obligor will pay to Collateral Agent
upon demand all expenses, including receiver's fees, attorney's fees, costs and
agent's compensation, incurred pursuant to the provisions of this Paragraph
2.05; and all such expenses shall be secured by this Instrument.
2.06 Foreclosure. If an Event of Default shall have occurred, Trustee
shall, upon being so requested to do by Collateral Agent, sell any or all of the
Property at public auction for cash, on the Property or at the courthouse door
in the county in which the Property is located, having first given notice of the
time and place of such sale in accordance with the statute in such case
provided, and convey the Property so sold to the purchaser in fee. Out of the
proceeds of said sale, Trustee shall pay all costs, charges, expenses,
commissions, unpaid taxes, and fees of advertising, selling and conveying the
Property and such other assessments, insurance or other fees or costs as may
have been incurred; a commission based on Trustee's usual hourly rates for
services rendered based on time actually incurred, which amount shall not exceed
two percent (2%) of the outstanding Secured Obligations, to Trustee, or his
successor, in payment of his services hereunder and of collecting the monies
secured by this Instrument; a sum sufficient to pay the entire balance owing on
the Secured Obligations; and the surplus, if any, to Obligor or the person
entitled thereto.
2.07 Purchase by Collateral Agent. Upon any foreclosure sale,
Collateral Agent, on behalf of the Lenders, may bid for and purchase the
Property and shall be entitled to apply all or any part of the Secured
Obligations secured hereby as a credit to the purchase price.
2.08 Application of Proceeds of Sale. In the event of a foreclosure
sale of the Property, the proceeds of said sale which is payable on the
principal balance of the Secured Obligations and applicable interest shall be
applied as provided in the Intercreditor Agreement.
2.09 Obligor as Tenant Holding Over. In the event of any such
foreclosure sale by Collateral Agent, Obligor shall be deemed a tenant holding
over and shall forthwith deliver possession to the purchaser or purchasers at
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such sale or be summarily dispossessed according to provisions of law applicable
to tenants holding over.
2.10 Waiver of Appraisement, Valuation, Stay, Extension and Redemption
Laws. Obligor agrees to the full extent permitted by law, that in case of a
Default or Event of Default on the part of Obligor hereunder, neither Obligor
nor anyone claiming through or under it shall or will set up, claim or seek to
take advantage of any appraisement, valuation, stay, extension, homestead,
exemption or redemption laws now or hereafter in force, in order to prevent or
hinder the enforcement or foreclosure of this Instrument, or the absolute sale
of the Property, or the final and absolute putting into possession thereof,
immediately after such sale, of the purchasers thereat, and Obligor, for itself
and all who may at any time claim through or under it, hereby waives to the full
extent that it may lawfully so do, the benefit of all such laws, and any and all
right to have the assets comprised in the security intended to be created hereby
marshaled upon any foreclosure of the lien hereof.
2.11 Waiver of Homestead. Obligor hereby waives and renounces all
homestead and exemption rights provided for by the Constitution and the laws of
the United States and of any state, in and to the Property as against the
collection of the Secured Obligations, or any part hereof.
2.12 Leases. Trustee, at the option of Collateral Agent, is authorized
to foreclose this Instrument subject to the rights of any tenants of the
Property, and the failure to make any such tenants parties to any such
foreclosure proceedings and to foreclose their rights will not be, nor be
asserted to be by Obligor, a defense to any proceedings instituted by Collateral
Agent to collect the sums secured hereby.
2.13 Discontinuance of Proceedings and Restoration of the Parties. In
case Trustee or Collateral Agent shall have proceeded to enforce any right,
power or remedy under this Instrument by foreclosure, entry or otherwise, and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to Collateral Agent, then and in every such
case Obligor and Collateral Agent shall be restored to their former positions
and rights hereunder, and all rights, powers and remedies of Collateral Agent
shall continue as if no such proceeding had been taken.
2.14 Remedies Cumulative. No right, power or remedy conferred upon or
reserved to Collateral Agent by this Instrument is intended to be exclusive of
any other right, power or remedy, but each and every such right, power and
remedy shall be cumulative and concurrent and shall be in addition to any other
right, power and remedy given hereunder or now or hereafter existing at law or
in equity or by statute.
2.15 Waiver.
(a) No delay or omission of Collateral Agent or of any Lender
to exercise any right, power or remedy accruing upon any Default shall
exhaust or impair any such right, power or remedy or shall be construed
to be a waiver of any such Default, or acquiescence therein; and every
right, power and remedy given by this Instrument to Collateral Agent
may be exercised from time to time and as often as may be deemed
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expedient by Collateral Agent. No consent or waiver, expressed or
implied, by Collateral Agent to or of any breach or Default by Obligor
in the performance of the obligations thereof hereunder shall be deemed
or construed to be a consent or waiver to or of any other breach or
Default in the performance of the same or any other obligations of
Obligor hereunder. Failure on the part of Lenders to complain of any
act or failure to act or to declare an Event of Default, irrespective
of how long such failure continues, shall not constitute a waiver by
any Lender of its rights hereunder or impair any rights, powers or
remedies consequent on any breach or Default by Obligor.
(b) If Lenders (i) grant forbearance or an extension of time
for the payment of any sums secured hereby; (ii) take other or
additional security for the payment of any sums secured hereby; (iii)
waive or do not exercise any right granted herein or in the Notes, the
Note Purchase Agreements, the Credit Agreement or any other "Security
Documents", as defined in the Credit Agreement; (iv) release any part
of the Property from the lien of this Instrument or otherwise changes
any of the terms, covenants, conditions or agreements of the Note or
this Instrument; (v) consent to the filing of any map, plat or replat
affecting the Property; (vi) consent to the granting of any easement or
other right affecting the Property; or (vii) make or consent to any
agreement subordinating the lien hereof, any such act or omission shall
not release, discharge, modify, change or affect the original liability
under the Notes, the Note Purchase Agreements, the Credit Agreement,
this Instrument or any other obligation of Obligor or any subsequent
purchaser of the Property or any part thereof, or any maker, co-signer,
endorser, surety or guarantor; nor shall any such act or omission
preclude Collateral Agent from exercising any right, power or privilege
herein granted or intended to be granted in the event of any Default
then made or of any subsequent Default; nor, except as otherwise
expressly provided in an instrument or instruments executed by
Collateral Agent, shall the lien of this Instrument be altered thereby.
In the event of the sale or transfer by operation of law or otherwise
of all or any part of the Property, Collateral Agent, without notice,
is hereby authorized and empowered to deal with any such vendee or
transferee with reference to the Property or the Secured Obligations
secured hereby, or with reference to any of the terms, covenants,
conditions or agreements hereof, as fully and to the same extent as it
might deal with the original parties hereto and without in any way
releasing or discharging any liabilities, obligations or undertakings.
2.16 Suits to Protect the Property. Collateral Agent shall have power
(a) to institute and maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Property by any acts which may be
unlawful or in violation of this Instrument, (b) to preserve or protect its
interest in the Property and in the rents, issues, profits and revenues arising
therefrom, and (c) to restrain the enforcement of or compliance with any
legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order would impair the security hereunder or be
prejudicial to the interest of Lenders.
2.17 Collateral Agent May File Proofs of Claim. In the case of any
receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment,
composition or other proceedings affecting Obligor, its creditors or its
property, Collateral Agent, to the extent permitted by law, shall be entitled to
file such proofs of claim and other documents as may be necessary or advisable
130
in order to have the claims of Collateral Agent allowed in such proceedings for
the entire amount due and payable by Obligor under this Instrument at the date
of the institution of such proceedings and for any additional amount which may
become due and payable by Obligor hereunder after such date.
2.18 WAIVER OF OBLIGOR'S RIGHTS. BY EXECUTION OF THIS INSTRUMENT AND BY
INITIALING THIS PARAGRAPH 2.18, OBLIGOR EXPRESSLY: (A) ACKNOWLEDGES THE RIGHT OF
COLLATERAL AGENT AND/OR LENDERS TO ACCELERATE THE SECURED OBLIGATIONS SUBJECT TO
THE TERMS OF THIS INSTRUMENT; (B) WAIVES ANY AND ALL RIGHTS WHICH OBLIGOR MAY
HAVE UNDER THE CONSTITUTION OF THE UNITED STATES (INCLUDING, WITHOUT LIMITATION,
THE FIFTH AND FOURTEENTH AMENDMENTS THEREOF), THE VARIOUS PROVISIONS OF THE
CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW,
TO NOTICE AND TO JUDICIAL HEARING PRIOR TO THE EXERCISE BY COLLATERAL AGENT OF
ANY RIGHT OR REMEDY HEREIN PROVIDED TO COLLATERAL AGENT, EXCEPT SUCH NOTICE (IF
ANY) AS IS SPECIFICALLY REQUIRED TO BE PROVIDED IN THIS INSTRUMENT; (C)
ACKNOWLEDGES THAT OBLIGOR HAS READ THIS INSTRUMENT AND ANY AND ALL QUESTIONS
REGARDING THE LEGAL EFFECT OF THIS INSTRUMENT AND ITS PROVISIONS HAVE BEEN
EXPLAINED FULLY TO OBLIGOR AND OBLIGOR HAS CONSULTED WITH COUNSEL OF OBLIGOR'S
CHOICE PRIOR TO EXECUTING THIS INSTRUMENT; AND (D) ACKNOWLEDGES THAT ALL WAIVERS
OF THE AFORESAID RIGHTS OF OBLIGOR HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND
WILLINGLY BY OBLIGOR AS PART OF A BARGAINED FOR LOAN TRANSACTION.
INITIALED BY OBLIGOR:
---------------
2.19 Claims Against Collateral Agent and Lenders. No action at law or
in equity shall be commenced, or allegation made, or defense raised, by Obligor
against Collateral Agent or Lenders for any claim under or related to this
Instrument, the Notes, the Note Purchase Agreement, the Credit Agreement or any
other instrument, document, transfer, conveyance, assignment or loan agreement
given by Obligor with respect to the Secured Obligations secured hereby, or
related to the conduct of the parties thereunder, unless written notice of such
claim, expressly setting forth the particulars of the claim alleged by Obligor,
shall have been given to Collateral Agent within sixty (60) days from and after
the initial awareness of Obligor of the event, omission or circumstances forming
the basis of Obligor for such claim. Any failure by Obligor to timely provide
such written notice to Collateral Agent shall constitute a waiver by Obligor of
such claim.
2.20 Application of Monies by Collateral Agent.
(a) Upon the occurrence of an Event of Default, Collateral
Agent shall be entitled to xxx for and to recover judgment against
Obligor for the whole amount of the Secured Obligations due and unpaid
together with costs and expenses, including without limitation, the
reasonable compensation, expenses and disbursements of Collateral
131
Agent's agents, attorneys and other representatives, either before,
after or during the pendency of any proceedings for the enforcement of
this Instrument, and the right of Collateral Agent to recover such
judgment shall not be affected by any taking possession or foreclosure
sale hereunder, or by the exercise of any other right, power or remedy
for the enforcement of the terms of this Instrument, or the foreclosure
of the lien hereof.
(b) In case of a foreclosure sale of all or any part of the
Property and the application of the proceeds of sale to the payment of
the Secured Obligations secured hereby, Collateral Agent shall be
entitled to enforce payment from Obligor of all Secured Obligations
then remaining due and unpaid and to recover judgment against Obligor
for any portion thereof remaining unpaid, with interest.
(c) Obligor hereby agrees, to the extent permitted by law,
that no recovery of any such judgment by Collateral Agent and no
attachment or levy of any execution upon any of the Property or any
other property shall in any way affect the lien of this Instrument upon
the Property or any part thereof or any lien, rights, powers or
remedies of Collateral Agent hereunder, but such lien, rights, powers
and remedies shall continue unimpaired as before.
(d) Any monies collected or received by Collateral Agent under
this Paragraph 2.20 shall be applied as provided in the Intercreditor
Agreement.
(e) The provisions of this paragraph shall not be deemed to
limit or otherwise modify the provisions of any guaranty of the Secured
Obligations of Obligor to Collateral Agent and Lenders.
ARTICLE 3
3.01 Indemnification of Trustee. Except for gross negligence or willful
misconduct, Trustee shall not be liable for any act or omission or error of
judgment. Trustee may rely on any document believed by it in good faith to be
genuine. All money received by Trustee shall, until used or applied as herein
provided, be held in trust, but need not be segregated (except to the extent
required by law), and Trustee shall not be liable for interest thereon. Obligor
shall protect, indemnify and hold harmless Trustee against all liability and
expenses which Trustee may incur in the performance of its duties hereunder.
3.02 Substitution of Trustee. Trustee may resign by an instrument in
writing addressed to Collateral Agent, or Trustee may be removed at any time
with or without cause by an instrument in writing in recordable form executed by
Collateral Agent. In case of the death, resignation, removal or disqualification
of Trustee or if for any reason Collateral Agent shall deem it desirable to
appoint a substitute or successor trustee to act instead of the herein named
Trustee or any substitute or successor trustee, then Collateral Agent shall have
the right and is hereby authorized and empowered to appoint a successor trustee,
or a substitute trustee, without other formality than appointment and
designation in writing executed by Collateral Agent and the proper recording of
that instrument in the Public Registry of the county in which the Property is
located, and the authority hereby conferred shall extend to the appointment of
other successor and substitute trustees successively until the Secured
Obligations has been paid in full, or until the Property is sold hereunder. In
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the event the Secured Obligations is owed by more than one person or entity, the
holder or holders of not less than a majority of the amount of such Secured
Obligations shall have the right and authority to make the appointment of a
successor or substitute trustee provided for in the preceding sentence. Such
appointment and designation by Collateral Agent shall be full evidence of the
right and authority to make the same and of all facts therein recited. Upon the
making of any such appointment and designation, all of the estate and title of
Trustee in the Property shall vest in the named successor or substitute trustee
and he shall thereupon succeed to and shall hold, possess and execute all the
rights, powers, privileges, immunities and duties herein conferred upon Trustee;
but nevertheless, upon the written request of Collateral Agent or of the
successor or substitute trustee the trustee ceasing to act shall execute and
deliver an instrument transferring to such successor or substitute trustee all
of the estate and title in the Property of the trustee so ceasing to act,
together with all the rights, powers, privileges, immunities and duties herein
conferred upon Trustee, and shall duly assign, transfer and deliver any of the
properties and money held by said Trustee hereunder to said successor or
substitute trustee. All references herein to Trustee shall be deemed to refer to
the trustee (including any successor or substitute appointed and designated as
herein provided) from time to time acting hereunder. Obligor hereby ratifies and
confirms any and all acts which the herein named Trustee or his successor or
successors, substitute or substitutes, in this trust, shall do lawfully by
virtue hereof.
3.03 Actions By Trustee. At any time, or from time to time, without
liability therefor and without notice, upon written request of Collateral Agent
and presentation of this Instrument and the Notes for endorsement, and without
affecting the personal liability of any person for payment of the Secured
Obligations or the effect of this Instrument upon the remainder of the Property,
Trustee may take such actions as Collateral Agent may request and which are
permitted by this Instrument or by applicable law.
ARTICLE 4
---------
4.01 Successors and Assigns. This Instrument shall inure to the benefit
of and be binding upon Obligor, Trustee, Collateral Agent and their respective
heirs, executors, legal representatives, successors and assigns. Whenever a
reference is made in this Instrument to Obligor, Trustee or Collateral Agent
such reference shall be deemed to include a reference to the heirs, executors,
legal representatives, successors and assigns of Obligor, Trustee or Collateral
Agent.
4.02 Terminology. All personal pronouns used in this Instrument whether
used in the masculine, feminine or neuter gender, shall include all other
genders; the singular shall include the plural, and vice versa. Titles and
Articles are for convenience only and neither limit nor amplify the provisions
of this Instrument itself, and all references herein to Articles, Paragraphs or
subparagraphs thereof, shall refer to the corresponding Articles, Paragraphs or
subparagraphs thereof, of this Instrument unless specific reference is made to
such Articles, Paragraphs or subparagraphs thereof of another document or
instrument.
4.03 Severability. If any provision of this Instrument or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Instrument and the
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application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
4.04 Applicable Law. The rights and obligations of the parties under
this Instrument shall be governed by and construed and interpreted in accordance
with the internal law of the State of New York without giving effect to the
conflicts of law rules and principles of such state; provided, however, that
notwithstanding the foregoing, the parties agree that:
(a) The procedures governing the enforcement by Collateral
Agent of provisional remedies against Obligor directly relating to the
real property encumbered hereby shall be governed by the laws of the
State of North Carolina; and
(b) North Carolina law shall apply to the extent, but only to
the extent, necessary in order to create, to perfect and to foreclose
the security interests and liens created hereby; provided, however,
that nothing in this paragraph shall in any event be construed to
provide that the substantive law of the State of North Carolina shall
apply to the Secured Obligations, which are and shall continue to be
governed by the substantive law of the State of New York.
4.05 Notices. Except as otherwise provided herein, any notice or other
communication required hereunder shall be in writing, and shall be deemed to
have been validly served, given or delivered the next succeeding Business Day
(as defined in the Intercreditor Agreement) after timely delivery to the
courier, if sent by overnight courier; at the time delivered by hand, if
personally delivered; or when receipt is acknowledged, if (i) telecopied
(followed by delivery of written copy thereof sent by overnight courier on the
same day as such notice is given), or (ii) sent by registered or certified mail,
return receipt requested, addressed to Obligor or Collateral Agent as follows:
If to Obligor:
Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to Collateral Agent:
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Syndications Group
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
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with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxxxxx X. Xxxxxx, Esq.
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
or to such other address as any party may designate for itself by like notice.
4.06 Replacement of Notes. Upon receipt of evidence reasonably
satisfactory to Obligor of the loss, theft, destruction or mutilation of the
Notes (or any of them), and in the case of any such loss, theft or destruction,
upon delivery of an indemnity agreement reasonably satisfactory to Obligor or,
in the case of any such mutilation, upon surrender and cancellation of any of
the Notes, Obligor will execute and deliver, in lieu thereof, a replacement
Note, identical in form and substance to such Note and dated as of the date of
such Note and upon such execution and delivery all references in this Instrument
to such Note shall be deemed to refer to such replacement Note.
4.07 Assignment. This Instrument is assignable by Collateral Agent, and
any assignment hereof by Collateral Agent shall operate to vest in the assignee
all rights and powers herein conferred upon and granted to Collateral Agent.
4.08 Time of the Essence. Time is of the essence with respect to each
and every covenant, agreement and obligation of Obligor under this Instrument,
the Notes, the Note Purchase Agreements, the Credit Agreement and any and all
other instruments now or hereafter evidencing, securing or otherwise relating to
the Secured Obligations.
4.09 General Indemnification. Obligor shall, at its sole cost and
expense, protect, defend, indemnify, release and hold harmless the Indemnified
Parties (defined below) from and against any and all Losses (defined below)
imposed upon or incurred by or asserted against any Indemnified Parties and
directly or indirectly arising out of or in any way relating to any one or more
of the following, except for those Losses caused by the willful misconduct or
gross negligence of any of the Indemnified Parties: (a) any accident, injury to
or death of persons or loss of or damage to property occurring in, on or about
the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent
property or adjacent parking areas, streets or ways; (b) any use, nonuse or
condition in, on or about the Property or any part thereof or on the adjoining
sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways;
(c) performance of any labor or services or the furnishing of any materials or
other property in respect of the Property or any part thereof; (d) any failure
of the Property to be in compliance with any applicable laws; or (e) any and all
claims and demands whatsoever which may be asserted against any Indemnified
Party by reason of any alleged obligations or undertakings on the part of
Obligor or any Indemnified Party to perform or discharge any of the terms,
covenants, or agreements contained in any lease now or hereafter created upon
the Property. Any amounts payable to any Indemnified Parties by reason of the
application of this section shall become immediately due and payable. The term
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"Losses" shall mean any and all claims, suits, liabilities (including, without
limitation, strict liabilities), actions, proceedings, obligations, debts,
damages, losses, costs, expenses, fines, penalties, charges, fees, expenses,
judgments, awards, and amounts paid in settlement of whatever kind or nature
(including but not limited to attorneys' fees and other costs of defense). The
term "Indemnified Parties" shall mean (a) Collateral Agent and Lenders, (b) the
officers, directors, shareholders, partners, members, employees and trustees of
any of the foregoing, and (c) the heirs, legal representatives, successors and
assigns of each of the foregoing.
4.10 Entire Agreement. This Instrument and the other Loan Documents and
the Senior Notes (as defined in the Credit Agreement) represent the final
agreement between the parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
136
IN WITNESS WHEREOF, Obligor has executed this Instrument under seal, as
of the day and year first above written.
XXXXXXXX XXXXX, INC., a Delaware corporation
By:__________________________________________
Printed Name:________________________________
Printed Title:_______________________________
Attest:______________________________________
Printed Name:________________________________
Printed Title:_______________________________
[CORPORATE SEAL]
STATE OF ______________
COUNTY OF ____________
I, ______________________, a Notary Public of the State and County
aforesaid, certify that _____________________ personally appeared before me this
day and acknowledged that ___he is the ___________________ President of Xxxxxxxx
Xxxxx, Inc., a Delaware corporation, and that __he, as such _______________
President being authorized to do so, executed the foregoing on behalf of the
corporation.
Witness my hand and notarial seal this _____ day of _______________,
2000.
---------------------------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
My Commission Expires:_______________________
137
EXHIBIT "A"
-----------
DESCRIPTION OF LAND
138
EXHIBIT "B"
-----------
PERMITTED ENCUMBRANCES
The lien of all taxes and assessments for the year 2000 and subsequent
years, not yet due and payable.
Such title exceptions as may be hereafter agreed to by Collateral Agent
in writing.
139
EXHIBIT J
---------
DOMESTIC STOCK PLEDGE AGREEMENT
THIS DOMESTIC STOCK PLEDGE AGREEMENT (this "Agreement") dated as of May
26, 2000 by and among XXXXXXXX XXXXX, INC., a Delaware corporation, (the
"Company") and each of the undersigned corporations respectively organized under
the laws of the states set forth on the signature pages below their names
(collectively, the "Pledgor Subsidiaries", which term shall refer to any
Domestic Subsidiary of the Company which becomes a Pledgor Subsidiary pursuant
to Section 24 hereof and Section 5.21 of the Credit Agreement referred to below;
the Company and the Pledgor Subsidiaries being collectively referred to as the
"Pledgors" and individually as a "Pledgor") and WACHOVIA BANK, N.A., a national
banking association (in its individual capacity, "Wachovia") organized under the
laws of the United States of America, as collateral agent (in such capacity,
together with its successors and assigns, "Collateral Agent") for itself, and
for (i) The Prudential Insurance Company of America, The Variable Annuity Life
Insurance Company, American General Annuity Insurance Company, Massachusetts
Mutual Life Insurance Company and C.M. Life Insurance Company (collectively,
together with any other holders of Senior Notes, as defined in and from time to
time pursuant to the Note Purchase Agreements, as defined in the Intercreditor
Agreement described below, the "Senior Note Holders") and (ii) Wachovia, First
Union National Bank, Bank One, N.A. and Branch Banking and Trust Company
(collectively, together with any other Banks parties from time to time to the
Credit Agreement defined below, the "Banks"; the Senior Note Holders and the
Banks being collectively referred to, together with any Cash Management Services
Provider (as defined in the Intercreditor Agreement), with respect to Cash
Management Services Obligations (as defined in the Intercreditor Agreement), and
any Bank providing hedge arrangements giving rise to Hedge Obligations (as
defined in the Intercreditor Agreement) as "Secured Parties"), in connection
with that certain Intercreditor Agreement by and among the Company, the
Collateral Agent and the Secured Parties dated as of May 26, 2000 (as amended or
otherwise modified from time to time, the "Intercreditor Agreement").
W I T N E S S E T H:
WHEREAS, the Company, the Banks, Wachovia, as Administrative Agent,
First Union National Bank, as Syndication Agent, and Bank One, N.A., as
Documentation Agent, have entered into that certain Credit Agreement dated as of
the date hereof (as amended, supplemented, restated or otherwise modified from
time to time in accordance with its terms, the "Credit Agreement"; capitalized
terms used herein without definition have the meanings set forth in the Credit
Agreement), pursuant to which the Banks have agreed, subject to the terms
thereof, to make available to the Borrowers certain financial accommodations;
and
WHEREAS, Pursuant to the Intercreditor Agreement, the Secured Parties
have agreed that the Secured Obligations shall be equally and ratably secured
pursuant to this Agreement and any other Security Documents; the Secured Parties
have appointed Wachovia as the Collateral Agent to act on behalf of all Secured
Parties regarding the Pledged Collateral, all as more fully provided in the
Intercreditor Agreement; and the Secured Parties have entered into the
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Intercreditor Agreement to, among other things, further define the rights,
duties, authority and responsibilities of the Collateral Agent and the
relationship between the Secured Parties regarding their interests in the
Pledged Collateral.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. The Pledge. Each of the Pledgors hereby pledges,
hypothecates, assigns, transfers, sets over and delivers unto the Collateral
Agent, and grants to the Collateral Agent, for the ratable benefit of the
Secured Parties, a security interest in all of each Pledgor's right, title and
interest in, to and under the following (collectively, the "Pledged
Collateral"): (a) all of the shares of common stock, equity interests and other
securities (collectively, "Securities") of the respective Domestic Subsidiaries
held by such Pledgor as set forth on Exhibit A attached hereto (collectively,
the "Issuers"); (b) any additional Securities of any of the Issuers as may from
time to time be issued to the respective Pledgor or otherwise acquired by such
Pledgor; (c) any additional Securities of the Issuer as may hereafter at any
time be delivered to the Collateral Agent by or on behalf of the Pledgor; (d)
any cash or additional Securities or other property at any time and from time to
time receivable or otherwise distributable in respect of, in exchange for, or in
substitution of, any of the property referred to in any of the immediately
preceding clauses (a) through (c); and (e) any and all products and proceeds of
any of the foregoing, together with all other rights, titles, interests, powers,
privileges and preferences pertaining to said property.
Section 2. Obligations Secured. This Agreement is made, and the
security interest created hereby is granted to the Collateral Agent, to secure
the prompt performance and payment in full of the Secured Obligations.
Section 3. Representations and Warranties. Each of the Pledgors,
jointly and severally, hereby represents and warrants to the Collateral Agent as
follows:
(a) Validly Issued, etc. All of the Securities of each Issuer have been
validly issued and are fully paid and nonassessable.
(b) Title and Liens. Each Pledgor is, and, except as permitted by the
Credit Agreement, will at all times continue to be, the legal and beneficial
owner of the applicable Pledged Collateral and none of the Pledged Collateral is
subject to any Lien, except for the Lien granted hereby.
(c) Name; Chief Executive Office; Taxpayer ID Number. The correct
corporate name of each Pledgor, the chief executive office and principal place
of business of each Pledgor, the location of each Pledgor's books and records
relating to the respective Pledged Collateral, and the Federal Identification
number of each Pledgor is set forth on Exhibit B attached hereto. None of the
Pledgors has any offices or places of business other than as set forth on
Exhibit B.
(d) Authority, etc. Each of the Pledgors (i) has the power and
authority to pledge the Pledged Collateral in the manner hereby done or
contemplated and (ii) will defend its title or interest thereto or therein
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against any and all Liens (other than the Lien created by this Agreement),
however arising, of all persons.
(e) No Approval. No consent or approval of any Governmental Authority
or any securities exchange was or is necessary to the validity of the pledges
effected hereby.
(f) Outstanding Shares. The Securities pledged by each of the Pledgors
hereunder constitute all of the issued and outstanding Shares of the respective
Domestic Subsidiary owned by each of the Pledgors.
Section 4. Covenants. Each of the Pledgors hereby unconditionally
covenants and agrees as follows:
(a) No Liens; No Sale of Pledged Collateral. None of the Pledgors will
create, assume, incur or permit or suffer to exist or to be created, assumed or
incurred, any Lien on any of the Securities, and will not, except as permitted
by the Credit Agreement, without the prior written consent of the Collateral
Agent (which consent shall not be unreasonably withheld), sell, lease, assign,
transfer or otherwise dispose of all or any portion of the Securities (or any
interest therein).
(b) Change of Locations, Name, Etc. Without giving the Collateral Agent
30 days prior written notice, none of the Pledgors will (i) change such
Pledgor's chief executive office, principal place of business, or the location
of its books and records relating to any of the Pledged Collateral or (ii)
change such Pledgor's name, identity or structure.
Section 5. Additional Shares.
(a) During the period this Agreement is in effect, without the consent
of the Collateral Agent, none of the Pledgors shall permit any of the Issuers to
issue any additional shares of capital stock or other equity securities or
interests, unless such additional shares have been delivered and pledged to the
Collateral Agent. Further, without the consent of the Collateral Agent, none of
the Pledgors shall permit any of the Issuers to amend or modify its respective
articles or certificate of incorporation in a manner which would materially
adversely affect the voting, liquidation, preference or other rights of a holder
of the shares of stock pledged hereunder.
(b) Each of the Pledgors agrees that, until this Agreement has
terminated in accordance with its terms, any additional Securities of any of the
Issuers at any time issued to any of the Pledgors or otherwise acquired by any
of the Pledgors shall be promptly delivered or otherwise transferred to the
Collateral Agent as additional Pledged Collateral and shall be subject to the
Lien of, and the terms and conditions of, this Agreement.
Section 6. Registration in Nominee Name, Denominations. The Collateral
Agent shall have the right (in its sole and absolute discretion) to hold the
Pledged Collateral in its own name as pledgee, the name of its nominee (as
Collateral Agent or as sub-agent) or the name of the applicable Pledgor,
endorsed or assigned in blank pursuant to a separate blank stock power or in
favor of the Collateral Agent or (where applicable) registered in the name of
the Collateral Agent in the relevant stock registry. Each of the Pledgors will
promptly give to the Collateral Agent copies of any notices or other
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communications received by it with respect to Pledged Collateral registered in
the name of such Pledgor. The Collateral Agent shall at all times have the right
to exchange the certificates representing Pledged Collateral for certificates of
smaller or larger numbers of shares for any purpose consistent with this
Agreement.
Section 7. Voting Rights; Dividends, etc. So long as no Event of
Default shall have occurred and be continuing, with respect to any Securities:
(a) each of the Pledgors shall be entitled to exercise any and all
voting and/or consensual rights and powers accruing to an owner of the Pledged
Collateral or any part thereof for any purpose not inconsistent with the terms
and conditions of this Agreement or any agreement giving rise to or otherwise
relating to any of the Secured Obligations; provided, however, that none of the
Pledgors shall exercise, or refrain from exercising, any such right or power if
any such action would have a materially adverse effect on the value of such
Pledged Collateral in the reasonable judgment of the Collateral Agent;
(b) each of the Pledgors shall be entitled to retain and use any and
all cash dividends, interest and principal paid on the Pledged Collateral, but
any and all stock and/or liquidating dividends, other distributions in property,
return of capital or other distributions made on or in respect of Pledged
Collateral, whether resulting from a subdivision, combination or
reclassification of outstanding Securities of any of the Issuers which are
pledged hereunder or received in exchange for the respective Pledged Collateral
or any part thereof or as a result of any merger, consolidation, acquisition or
other exchange of assets or on the liquidation, whether voluntary or
involuntary, of any of the Issuers, or otherwise, shall be and become part of
the Pledged Collateral pledged hereunder and, if received by any of the
Pledgors, shall forthwith be delivered to the Collateral Agent to be held as
collateral subject to the terms and conditions of this Agreement.
(c) The Collateral Agent agrees to execute and deliver to each of the
Pledgors, or cause to be executed and delivered to each of the Pledgors, as
appropriate, at the sole cost and expense of such Pledgor, all such proxies,
powers of attorney, dividend orders and other instruments as such Pledgor may
reasonably request for the purpose of enabling such Pledgor to exercise the
voting and/or consensual rights and powers which such Pledgor is entitled to
exercise pursuant to clause (a) above and/or to receive the dividends which such
Pledgor is authorized to retain pursuant to subsection (b) above.
(d) Upon the occurrence and during the continuance of an Event of
Default, all rights of each the Pledgors to exercise the voting and/or
consensual rights and powers which such Pledgor is entitled to exercise pursuant
to subsection (a) above and/or to receive the dividends, interest and principal
that such Pledgor is authorized to receive and retain pursuant to subsection (b)
above shall cease, and all such rights thereupon shall become immediately vested
in the Collateral Agent, which shall have, to the extent permitted by law, the
sole and exclusive right and authority to exercise such voting and/or consensual
rights and powers which each of the Pledgors shall otherwise be entitled to
exercise pursuant to subsection (a) above and/or to receive and retain the
dividends which each of the Pledgors shall otherwise be authorized to retain
pursuant to subsection (b) above. Any and all money and other property paid over
to or received by the Collateral Agent pursuant to the provisions of this
subsection (b) shall be retained by the Collateral Agent as additional
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collateral hereunder and shall be applied in accordance with the provisions of
Section 10. If any of the Pledgors shall receive any dividends or other property
which it is not entitled to receive under this Section, such Pledgor shall hold
the same in trust for the Collateral Agent, without commingling the same with
other funds or property of or held by such Pledgor, and shall promptly deliver
the same to the Collateral Agent upon receipt by such Pledgor in the identical
form received, together with any necessary endorsements.
Section 8. Event of Default Defined. For purposes of this Agreement,
"Event of Default" shall mean:
(a) any of the Pledgors shall fail to observe or perform any covenant
or agreement contained in Sections 4(a), 5, or 7(b) hereof;
(b) any of Pledgors shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by the
immediately preceding subsection (a)) for a period of 30 days after written
notice thereof has been given to such Pledgor by the Collateral Agent; and
(c) an Event of Default under and as defined in each of the Credit
Agreement and the Intercreditor Agreement shall occur and be continuing.
Section 9. Remedies upon Default.
(a) In addition to any right or remedy that the Collateral Agent may
have under the Intercreditor Agreement, the Credit Agreement, the other Loan
Documents or otherwise under applicable law, if an Event of Default shall have
occurred and be continuing, the Collateral Agent may exercise any and all the
rights and remedies of a secured party under the Uniform Commercial Code as in
effect in any applicable jurisdiction (the "Code") and may otherwise sell,
assign, transfer, endorse and deliver the whole or, from time to time, any part
of the Pledged Collateral at a public or private sale or on any securities
exchange, for cash, upon credit or for other property, for immediate or future
delivery, and for such price or prices and on such terms as the Collateral Agent
in its discretion shall deem appropriate. The Collateral Agent shall be
authorized at any sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to Persons who will represent and agree that
they are purchasing the Pledged Collateral for their own account in compliance
with the Securities Act and upon consummation of any such sale the Collateral
Agent shall have the right to assign, transfer, endorse and deliver to the
purchaser or purchasers thereof the Pledged Collateral so sold. Each purchaser
at any sale of Pledged Collateral shall take and hold the property sold
absolutely free from any claim or right on the part of any of the Pledgors, and
each of the Pledgors hereby waives (to the fullest extent permitted by
applicable law) all rights of redemption, stay and/or appraisal which any of the
Pledgors now has or may at any time in the future have under any applicable law
now existing or hereafter enacted. Each of the Pledgors agrees that, to the
extent notice of sale shall be required by applicable law, at least ten days'
prior written notice to the applicable Pledgor of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification, but notice given in any other reasonable
manner or at any other reasonable time shall constitute reasonable notification.
Such notice, in case of public sale, shall state the time and place for such
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sale, and, in the case of sale on a securities exchange, shall state the
exchange on which such sale is to be made and the day on which the respective
Pledged Collateral, or portion thereof, will first be offered for sale at such
exchange. Any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as the Collateral Agent may
fix and shall state in the notice or publication (if any) of such sale. At any
such sale, the applicable Pledged Collateral, or portion thereof to be sold, may
be sold in one lot as an entirety or in separate parcels, as the Collateral
Agent may determine in its sole and absolute discretion. The Collateral Agent
shall not be obligated to make any sale of any of the Pledged Collateral if it
shall determine not to do so regardless of the fact that notice of sale of the
Pledged Collateral may have been given. The Collateral Agent may, without notice
or publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. In case the sale of all or any part of the
Pledged Collateral is made on credit or for future delivery, the Pledged
Collateral so sold may be retained by the Collateral Agent until the sale price
is paid by the purchaser or purchasers thereof, but the Collateral Agent shall
not incur any liability to any of the Pledgors in case any such purchaser or
purchasers shall fail to take up and pay for the Pledged Collateral so sold and,
in case of any such failure, such Pledged Collateral may be sold again upon like
notice. At any public sale made pursuant to this Agreement, the Collateral Agent
or any Secured Party (in accordance with Section 8 of the Intercreditor
Agreement), to the extent permitted by applicable law, may bid for or purchase,
free from any right of redemption, stay and/or appraisal on the part of any of
the Pledgors (all said rights being also hereby waived and released to the
extent permitted by applicable law), any part of or all the Pledged Collateral
offered for sale and may make payment on account thereof by using any claim then
due and payable to the Collateral Agent from any of the Pledgors as a credit
against the purchase price, and the Collateral Agent may, upon compliance with
the terms of sale and to the extent permitted by applicable law, hold, retain
and dispose of such property without further accountability to any of the
Pledgors therefor. For purposes hereof, a written agreement to purchase all or
any part of the Pledged Collateral shall be treated as a sale thereof; the
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and none of the Pledgors shall be entitled to the return of any Pledged
Collateral subject thereto, notwithstanding the fact that after the Collateral
Agent shall have entered into such an agreement all Events of Default may have
been remedied or the Secured Obligations may have been paid in full as herein
provided. Each of the Pledgors hereby waives any right to require any marshaling
of assets and any similar right.
(b) In addition to exercising the power of sale herein conferred upon
it, the Collateral Agent shall also have the option to proceed by suit or suits
at law or in equity to foreclose this Agreement and sell the Pledged Collateral
or any portion thereof pursuant to judgment or decree of a court or courts
having competent jurisdiction.
(c) In addition to the foregoing, the Collateral Agent shall have all
other rights, powers and remedies which are available to it under any applicable
laws.
(d) The rights and remedies of the Collateral Agent under this
Agreement are cumulative and not exclusive of any rights or remedies which it
would otherwise have.
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Section 10. Application of Proceeds of Sale and Cash. The Company
agrees to pay to the Collateral Agent all Enforcement Costs paid or incurred by
the Collateral Agent. This agreement in this Section 10 shall survive the
termination of this Agreement and the Lien on the Pledged Collateral. All
Enforcement Costs, together with interest thereon from the date of any demand
therefor until paid in full at a per annum rate of interest equal at all times
to the Default Rate, shall be paid by the Company to the Collateral Agent
whenever demanded by the Collateral Agent.
Any proceeds of the collection of the sale or other disposition of the
Collateral will be applied by the Collateral Agent in accordance with the terms
of Section 12 of the Intercreditor Agreement. If the sale or other disposition
of the Collateral fails to satisfy all of the Secured Obligations, the Debtors
shall remain liable to the Collateral Agent and the Secured Parties for any
deficiency. Any surplus from the sale or disposition of the Pledged Collateral
shall be paid to the respective Debtor or to any other party entitled thereto or
shall otherwise be paid over in a manner permitted by law after payment in full
of all Secured Obligations and the Enforcement Costs related to any such
payment.
As used herein, the term "Enforcement Costs" means all reasonable
expenses, charges, costs and fees whatsoever (including, without limitation,
reasonable attorneys' fees and expenses) of any nature whatsoever paid or
incurred by or on behalf of the Collateral Agent in connection with (a) the
collection or enforcement of any or all of the Secured Obligations or this
Agreement (including, without limitation, reasonable attorneys fees incurred
prior to the institution of any suit or other proceeding), (b) the creation,
perfection, collection, maintenance, preservation, defense, protection,
realization upon, disposition, sale or enforcement of all or any part of the
Collateral, (c) the monitoring, inspection, administration, processing,
servicing of any or all of the Secured Obligations and/or the Collateral, (d)
the preparation of this Agreement, the Security Documents, and the preparation
and review of lien and record searches, reports, certificates, and/or other
documents or information relating from time to time to the taking, perfection,
inspection, preservation, protection and/or release of a Lien on the Collateral,
the value of the Collateral, or otherwise relating to the Collateral Agent's or
any Secured Party's rights, powers and remedies under this Agreement or with
respect to the Collateral, and (e) all filing and/or recording taxes or fees and
all stamp and other similar taxes and fees payable or determined to be payable
in connection with the execution and delivery of this Agreement and any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes or fees, the Pledgors hereby agreeing to indemnify and save the
Collateral Agent and the Secured Parties harmless from and against such
liabilities
Section 11. Collateral Agent Appointed Attorney-in-Fact. From and after
the occurrence and during the existence of an Event of Default, each of the
Pledgors hereby constitutes and appoints the Collateral Agent as the
attorney-in-fact of each Pledgor with full power of substitution either in the
Collateral Agent's name or in the name of each of the Pledgors to do any of the
following with respect to any Securities and the related Pledged Collateral: (a)
to perform any obligation of any of the Pledgors hereunder in such Pledgor's
name or otherwise; (b) to ask for, demand, xxx for, collect, receive, receipt
and give acquittance for any and all moneys due or to become due under and by
virtue of any Pledged Collateral; (c) to prepare, execute, file, record or
deliver notices, assignments, financing statements, continuation statements,
applications for registration or like papers to perfect, preserve or release the
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Collateral Agent's security interest in the Pledged Collateral or any of the
documents, instruments, certificates and agreements described in Section 13(b);
(d) to verify facts concerning the Pledged Collateral in its own name or a
fictitious name; (e) to endorse checks, drafts, orders and other instruments for
the payment of money payable to any of the Pledgors, representing any interest
or dividend or other distribution payable in respect of the Pledged Collateral
or any part thereof or on account thereof and to give full discharge for the
same; (f) to exercise all rights, powers and remedies which any of the Pledgors
would have, but for this Agreement, under the Pledged Collateral; and (g) to
carry out the provisions of this Agreement and to take any action and execute
any instrument which the Collateral Agent may deem necessary or advisable to
accomplish the purposes hereof, and to do all acts and things and execute all
documents in the name of each of the Pledgors or otherwise, deemed by the
Collateral Agent as necessary, proper and convenient in connection with the
preservation, perfection or enforcement of its rights hereunder. Nothing herein
contained shall be construed as requiring or obligating the Collateral Agent to
make any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by it, or to present or file any claim or notice, or to
take any action with respect to the Pledged Collateral or any part thereof or
the moneys due or to become due in respect thereof or any property covered
thereby, and no action taken by the Collateral Agent or omitted to be taken with
respect to the Pledged Collateral or any part thereof shall give rise to any
defense, counterclaim or offset in favor of the Pledgor or to any claim or
action against the Collateral Agent. The power of attorney granted herein is
irrevocable and coupled with an interest.
Section 12. Reimbursement of Collateral Agent. The Company agrees to
pay upon demand to the Collateral Agent the amount of any and all reasonable
expenses, including the reasonable fees disbursements and other charges of its
counsel and of any experts or agents, that the Collateral Agent may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or any sale of, collection from, or other realization upon, any
of the Pledged Collateral, (iii) the exercise or enforcement of any of the
rights of the Collateral Agent hereunder, or (iv) the failure by any of the
Pledgors to perform or observe any of the provisions hereof. Any such amounts
payable as provided hereunder shall be additional obligations secured hereby and
by the other Security Documents.
Section 13. Further Assurances. Each of the Pledgors shall, at its sole
cost and expense, take all action that may be necessary or desirable in the
Collateral Agent's sole discretion, so as at all times to maintain the validity,
perfection, enforceability and priority of the Collateral Agent's security
interest in the Pledged Collateral, or to enable the Collateral Agent to
exercise or enforce its rights hereunder, including without limitation (a)
delivering to the Collateral Agent, endorsed or accompanied by such instruments
of assignment as the Collateral Agent may specify, any and all chattel paper,
instruments, letters of credit and all other undertakings of guaranty and
documents evidencing or forming a part of the Pledged Collateral and (b)
executing and delivering financing statements, pledges, designations, notices
and assignments, in each case in form and substance satisfactory to the
Collateral Agent, relating to the creation, validity, perfection, priority or
continuation of the security interest granted hereunder. Subject to the
foregoing, each of the Pledgors agrees to take, and authorizes the Collateral
Agent to take on such Pledgor's behalf, any or all of the following actions with
respect to any Pledged Collateral as the Collateral Agent shall deem necessary
to perfect the security interest and pledge created hereby or to enable the
Collateral Agent to enforce its rights and remedies hereunder: (i) to register
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in the name of the Collateral Agent any Pledged Collateral in certificated or
uncertificated form; (ii) to endorse in the name of the Collateral Agent any
Pledged Collateral issued in certificated form; and (iii) by book entry or
otherwise, identify as belonging to the Collateral Agent a quantity of
securities that constitutes all or part of the Pledged Collateral registered in
the name of the Collateral Agent. Notwithstanding the foregoing each of the
Pledgors agrees that Pledged Collateral which is not in certificated form or is
otherwise in book-entry form shall be held for the account of the Collateral
Agent. Each of the Pledgors hereby authorizes the Collateral Agent to execute
and file in all necessary and appropriate jurisdictions (as determined by the
Collateral Agent) one or more financing or continuation statements (or any other
document or instrument referred to in the immediately preceding clause (b)) in
the name of the applicable Pledgor and to sign such Pledgor's name thereto. Each
of the Pledgors authorizes the Collateral Agent to file any such financing
statement, document or instrument without the signature of such Pledgor to the
extent permitted by applicable law. To the extent permitted by applicable law, a
carbon, photographic, xerographic or other reproduction of this Agreement or any
financing statement is sufficient as a financing statement. Any property
comprising part of the Pledged Collateral required to be delivered to the
Collateral Agent pursuant to this Agreement shall be accompanied by proper
instruments of assignment duly executed by each of the Pledgors and by such
other instruments or documents as the Collateral Agent may reasonably request.
Section 14. Securities Laws. In view of the position of the Pledgors in
relation to the Pledged Collateral, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar applicable law hereafter enacted analogous
in purpose or effect, whether foreign or domestic (such Act and any such similar
applicable law as from time to time in effect being called the "Securities
Laws") with respect to any disposition of the Pledged Collateral permitted
hereunder. Each of the Pledgors understands that compliance with the Securities
Laws might very strictly limit the course of conduct of the Collateral Agent if
the Collateral Agent were to attempt to dispose of all or any part of the
Pledged Collateral in accordance with the terms hereof, and might also limit the
extent to which or the manner in which any subsequent transferee of any Pledged
Collateral could dispose of the same. Similarly, there may be other legal
restrictions or limitations affecting the Collateral Agent in any attempt to
dispose of all or part of the Pledged Collateral in accordance with the terms
hereof under applicable Blue Sky or other state securities laws or similar
applicable law analogous in purpose or effect. The Pledgor recognizes that in
light of the foregoing restrictions and limitations the Collateral Agent may,
with respect to any sale of the Pledged Collateral, limit the purchasers to
those who will agree, among other things, to acquire such Pledged Collateral for
their own account, for investment, and not with a view to the distribution or
resale thereof. Each of the Pledgors acknowledges and agrees that in light of
the foregoing restrictions and limitations, the Collateral Agent, in its sole
and absolute discretion, may, in accordance with applicable law, (a) proceed to
make such a sale whether or not a registration statement for the purpose of
registering such Pledged Collateral or part thereof shall have been filed under
the Federal Securities Laws and (b) approach and negotiate with a single
potential purchaser to effect such sale. Each of the Pledgors acknowledges and
agrees that any such sale might result in prices and other terms less favorable
to the seller than if such sale were a public sale without such restrictions. In
the event of any such sale, the Collateral Agent shall incur no responsibility
or liability for selling all or any part of the Pledged Collateral in accordance
with the terms hereof at a price that the Collateral Agent, in its sole and
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absolute discretion, may in good xxxxx xxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or
if more than a single purchaser were approached. The provisions of this Section
will apply notwithstanding the existence of public or private market upon which
the quotations or sales prices may exceed substantially the price at which the
Collateral Agent sells.
Section 15. Indemnification. Each of the Pledgors agrees to indemnify
and hold the Collateral Agent and any corporation controlling, controlled by, or
under common control with, the Collateral Agent and any officer, attorney,
director, shareholder, agent or employee of the Collateral Agent or any such
corporation (each an "Indemnified Person"), harmless from and against any claim,
loss, damage, action, cause of action, liability, cost and expense or suit of
any kind or nature whatsoever (collectively, "Losses"), brought against or
incurred by an Indemnified Person, in any manner arising out of or, directly or
indirectly, related to or connected with this Agreement, including without
limitation, the exercise by the Collateral Agent of any of its rights and
remedies under this Agreement or any other action taken by the Collateral Agent
pursuant to the terms of this Agreement; provided, however, the Pledgor shall
not be liable to an Indemnified Person for any Losses to the extent that such
Losses result from the gross negligence or willful misconduct of such
Indemnified Person. The Pledgor's obligations under this section shall survive
the termination of this Agreement and the payment in full of the Secured
Obligations.
Section 16. Continuing Security Interest. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall remain in full
force and effect until it terminates in accordance with its terms. Each of the
Pledgors and the Collateral Agent hereby agree that the security interest
created by this Agreement in the Pledged Collateral shall not terminate and
shall continue and remain in full force and effect notwithstanding the transfer
to any of the Pledgors or any person designated by it of all or any portion of
the Pledged Collateral.
Section 17. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the grant of a security interest in the Collateral and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Intercreditor
Agreement, the Credit Agreement or any other Loan Document, any agreement with
respect to any of the Obligations or any other agreement or instrument relating
to any of the foregoing, (b) any change in the time, manner or place of the
payment of, or in any other term of, all or any of the Secured Obligations, or
any other amendment or waiver of or any consent to any departure from the
Intercreditor Agreement, the Credit Agreement, any other Loan Document, or any
other agreement or instrument relating to any of the foregoing, (c) any
exchange, release or nonperfection of any other collateral, or any release or
amendment or waiver of or consent to or departure from any guaranty, for all or
any of the Secured Obligations or (d) any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any of the
Pledgors in respect of the Secured Obligations or in respect of this Agreement
(other than the indefeasible payment in full of all the Secured Obligations).
Section 18. No Waiver. Neither the failure on the part of the
Collateral Agent to exercise, nor the delay on its part in exercising any right,
power or remedy hereunder, nor any course of dealing between the Collateral
Agent and any of the Pledgors shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power, or remedy hereunder
149
preclude any other or the further exercise thereof or the exercise of any other
right, power or remedy.
Section 19. Notices. Notices, requests and other communications
required or permitted hereunder shall be given in accordance with the applicable
terms of the Credit Agreement.
Section 20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 21. Amendments. No amendment or waiver of any provision of this
Agreement nor consent to any departure by any of the Pledgors herefrom shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 22. Binding Agreement; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that none of the Pledgors shall be permitted to
assign this Agreement or any interest herein or in the Pledged Collateral, or
any part thereof, or any cash or property held by the Collateral Agent as
collateral under this Agreement.
Section 23. Termination. Upon indefeasible payment in full of all of
the Bank Obligations, and termination of all Commitments under the Credit
Agreement, this Agreement shall terminate. Upon termination of this Agreement in
accordance with its terms the Collateral Agent agrees to take such actions as
the Company may reasonably request, and at the sole cost and expense of the
Company, (a) to return the Pledged Collateral to the applicable Pledgor, and (b)
to evidence the termination of this Agreement, including, without limitation,
the filing of any releases or any termination statements under the Uniform
Commercial Code.
Section 24. Additional Pledgors; Release of Pledgors. Section 5.21 of
the Credit Agreement provides that Domestic Subsidiaries which own or acquire a
Domestic Subsidiary and which are not Pledgors must become Pledgors by, among
other things, executing and delivering to the Agent a counterpart to this
Agreement. Any Domestic Subsidiary which executes and delivers to the Agent a
counterpart of this Agreement shall be a Pledgor for all purposes hereunder.
Under certain circumstances described in paragraph (b) of Section 5.21 of the
Credit Agreement, a Pledgor which is to be sold may obtain from the Collateral
Agent a written release from this Agreement pursuant to the provisions of such
paragraph and upon obtaining such written release, any such former Pledgor shall
no longer be a Pledgor hereunder. Each other Pledgor consents and agrees to any
such release and agrees that no such release shall affect its obligations
hereunder.
Section 25. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provisions shall be ineffective only to
150
the extent of such prohibition or invalidity, without invalidating the remainder
of such provisions or the remaining provisions of this Agreement.
Section 26. Headings. Section headings used herein are for convenience
only and are not to affect the construction of or be taken into consideration in
interpreting this Agreement.
Section 27. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original and all of which
shall constitute but one agreement.
[Signatures on Next Page]
151
IN WITNESS WHEREOF, each of the Pledgors has executed and delivered
this Agreement under seal as of this the date first written above.
XXXXXXXX XXXXX, INC. (SEAL)
By:
----------------------------------------
Name:
Title:
GOLD XXXXX, INC. (SEAL)
a Delaware corporation
By:
----------------------------------------
Name:
Title:
Agreed to, accepted and acknowledged
as of the date first written above.
WACHOVIA BANK, N.A., as Collateral Agent
By:
-------------------------------------
Title:
152
EXHIBIT A
---------
PLEDGED COLLATERAL
PLEDGOR: XXXXXXXX XXXXX, INC.
--------------------
ISSUER NO. OF SECURITIES CERTIFICATE NOS.
------ ----------------- ----------------
Curtains and Fabrics, Inc. 376 A2
Gold Xxxxx, Inc. 12,250 1, 2, 7, 11, 12, 13, 14, 15, 16, 17,
18, 22, 23, 28, 31, 32, 33, 34,
Raschel Fashion Interknitting, Ltd. 200 1
Mexican Industries of North Carolina, 100 1
Inc.
GMI Computer Sales, Inc. 100 1
Guilford Airmont, Inc. 100 1
Xxxxxxxx Xxxxx (Michigan), Inc. 100 1
Advisory Research Services, Inc. 1 1
Guilford International, Inc. 1000 1
Xxxxxxx Laces, Ltd. 200 1
GFD Services, Inc. 100 1
PLEDGOR: GOLD XXXXX, INC.
----------------
ISSUER NO. OF SECURITIES CERTIFICATES NOS.
------ ----------------- -----------------
Gold Xxxxx Farms, Inc. 200 2
153
EXHIBIT B
---------
PLEDGORS
Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Federal I.D. No. 00-0000000
Gold Xxxxx, Inc.
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxxxx 00000
00-0000000
154
EXHIBIT K
---------
GUARANTY
--------
THIS GUARANTY (this "Guaranty") is made as of May 26, 2000, by
each of the undersigned corporations respectively organized under the laws of
the states set forth on the signature pages below their names (collectively the
"Guarantors", which term shall include any Significant Domestic Subsidiary of
Xxxxxxxx Xxxxx, Inc. which becomes a Guarantor pursuant to Section 16 hereof and
Section 5.21 of the Credit Agreement referred to below), in favor of the
Administrative Agent, for the ratable benefit of the Banks, under the Credit
Agreement referred to below;
W I T N E S S E T H
WHEREAS, XXXXXXXX XXXXX, INC., a Delaware corporation (the
"Borrower"), and WACHOVIA BANK, N.A., as Administrative Agent (the
"Administrative Agent"), First Union National Bank, as Syndication Agent and
Bank One, N.A., as Documentation Agent, and certain other Banks from time to
time party thereto have entered into a certain Credit Agreement dated as of even
date herewith (as it may be amended or modified further from time to time, the
"Credit Agreement"), providing, subject to the terms and conditions thereof, for
extensions of credit to be made by the Banks to the Borrower which will the
benefit the Guarantors;
WHEREAS, it is required by Section 3.01(g) of the Credit
Agreement, that the Guarantors execute and deliver this Guaranty whereby they
Guarantee the payment when due of all principal, interest and other amounts that
shall be at any time payable by the Borrower under the Credit Agreement, the
Notes and the other Loan Documents; and
WHEREAS, in consideration of the financial and other support
that the Borrower has provided, and such financial and other support as the
Borrower may in the future provide, to the Guarantors, whether directly or
indirectly, and in order to induce the Banks and the Administrative Agent to
enter into the Credit Agreement, the Guarantors are willing to guarantee the
obligations of the Borrower under the Credit Agreement, the Notes, and the other
Loan Documents;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Credit Agreement
and not otherwise defined herein have, as used herein, the respective meanings
provided for therein.
SECTION 2. Representations and Warranties. The Guarantors
incorporate herein by reference as fully as if set forth herein all of the
representations and warranties pertaining to the Guarantors (whether stated in
their capacity as Guarantors or as Subsidiaries) contained in Article IV of the
Credit Agreement (which representations and warranties shall be deemed to have
been renewed by the Guarantors upon each Borrowing under the Credit Agreement).
155
SECTION 3. Covenants. The Guarantors covenant that, so long as
any Bank has any Commitment outstanding under the Credit Agreement or any amount
payable under the Credit Agreement or any Note shall remain unpaid, the
Guarantors will fully comply with those covenants set forth in Article V of the
Credit Agreement pertaining to the Guarantors (whether stated in their capacity
as Guarantors or as Subsidiaries), and the Guarantors incorporate herein by
reference as fully as if set forth herein all of such covenants.
SECTION 4. The Guaranty. The Guarantors hereby unconditionally
and jointly and severally guarantee the full and punctual payment (whether at
stated maturity, upon acceleration or otherwise) of the principal of and
interest on each Note issued by the Borrower pursuant to the Credit Agreement,
and the full and punctual payment of all other amounts payable by the Borrower
under the Credit Agreement (including, without limitation, all Syndicated Loans
and Swing Loans and interest thereon, all Cash Management Services Obligations,
all Hedge Obligations and all compensation and indemnification amounts and fees
payable pursuant to the Credit Agreement and the Administrative Agent's Letter
Agreement (all of the foregoing obligations being referred to collectively as
the "Guaranteed Obligations"). Upon failure by the Borrower to pay punctually
any such amount, each of the Guarantors agrees that it shall forthwith on demand
pay the amount not so paid at the place and in the manner specified in the
Credit Agreement, the relevant Note or the relevant Loan Document, as the case
may be.
SECTION 5. Guaranty Unconditional. The obligations of the
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the Borrower under
the Credit Agreement, any Note, or any other Loan Document, by
operation of law or otherwise or any obligation of any other guarantor
of any of the Guaranteed Obligations;
(ii) any modification or amendment of or supplement
to the Credit Agreement, any Note, or any other Loan Document;
(iii) any release, nonperfection or invalidity of any
direct or indirect security for any obligation of the Borrower under
the Credit Agreement, any Note, any Loan Document, or any obligations
of any other guarantor of any of the Guaranteed Obligations;
(iv) any change in the corporate structure or
ownership of the Borrower or corporate structure or ownership of any
other Guarantor or any other guarantor of any of the Guaranteed
Obligations, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Borrower, or any other Guarantor or
any other guarantor of the Guaranteed Obligations, or its assets or any
resulting release or discharge of any obligation of the Borrower, or
156
any other Guarantor or any other guarantor of any of the Guaranteed
Obligations;
(v) the existence of any claim, setoff or other
rights which the Guarantors may have at any time against the Borrower,
any other Guarantor or any other guarantor of any of the Guaranteed
Obligations, the Administrative Agent, any Bank or any other Person,
whether in connection herewith or any unrelated transactions, provided
that nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim;
(vi) any law, regulation, order, decree or directive
(whether or not having the force of law) or any interpretation thereof,
now or hereafter in effect in any jurisdiction, that purports to modify
any of the terms of or rights of any Bank with respect to any
Guaranteed Obligation or under the Credit Agreement or any other Loan
Document or this Guaranty, including without limitation any law,
regulation, order, decree or directive or interpretation thereof that
purports to require or permit the satisfaction of any Guaranteed
Obligation other than strictly in accordance with the terms of the
Credit Agreement or any other Loan Document (such as by the tender of a
currency other than the relevant Foreign Currency) or that restricts
the procurement of the Foreign Currency by any Borrower or the
Guarantor, or any agreement, whether or not signed by or on behalf of
any Bank, in connection with the restructuring or rescheduling of
public or private obligations in any Borrower's country, whether or not
such agreement is stated to cause or permit the discharge of the
Guaranteed Obligations prior to the final payment in full of the
Guaranteed Obligations in the relevant Foreign Currency in strict
accordance with the Credit Agreement or other Loan Documents;
(vii) any invalidity or unenforceability relating to
or against the Borrower, or any other Guarantor or any other guarantor
of any of the Guaranteed Obligations, for any reason related to the
Credit Agreement, any other Loan Document, or any other Guaranty, or
any provision of applicable law or regulation purporting to prohibit
the payment by the Borrower, or any other Guarantor or any other
guarantor of the Guaranteed Obligations, of the principal of or
interest on any Note or any other amount payable by the Borrower under
the Credit Agreement, the Notes, or any other Loan Document; or
(viii) any other act or omission to act or delay of
any kind by the Borrower, any other Guarantor or any other guarantor of
the Guaranteed Obligations, the Administrative Agent, any Bank or any
other Person or any other circumstance whatsoever which might, but for
the provisions of this paragraph, constitute a legal or equitable
discharge of the Guarantors' obligations hereunder.
SECTION 6. Discharge Only Upon Payment In Full; Reinstatement
In Certain Circumstances. The Guarantors' obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full and the Commitments under the Credit Agreement shall have terminated or
expired. If at any time any payment of the principal of or interest on any Note
or any other amount payable by the Borrower under the Credit Agreement or any
other Loan Document is rescinded or must be otherwise restored or returned upon
the insolvency, bankruptcy or reorganization of the Borrower or otherwise, the
157
Guarantors' obligations hereunder with respect to such payment shall be
reinstated as though such payment had been due but not made at such time.
SECTION 7. Waiver of Notice by the Guarantors. The Guarantors
irrevocably waive acceptance hereof, presentment, demand, protest and, to the
fullest extent permitted by law, any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against the
Borrower, any other Guarantor or any other guarantor of the Guaranteed
Obligations, or any other Person.
SECTION 8. Stay of Acceleration. If acceleration of the time
for payment of any amount payable by the Principal under the Credit Agreement,
any Note or any other Loan Document is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, any Note or any other Loan
Document shall nonetheless be payable by the Guarantors hereunder forthwith on
demand by the Administrative Agent made at the request of the Required Banks.
SECTION 9. Notices. All notices, requests and other
communications to any party hereunder shall be given or made by telecopier or
other writing and telecopied or mailed or delivered to the intended recipient at
its address or telecopier number set forth on the signature pages hereof or such
other address or telecopy number as such party may hereafter specify for such
purpose by notice to the Administrative Agent in accordance with the provisions
of Section 9.01 of the Credit Agreement. Except as otherwise provided in this
Guaranty, all such communications shall be deemed to have been duly given when
transmitted by telecopier, or personally delivered or, in the case of a mailed
notice, 3 Domestic Business Days after such communication is deposited in the
mails with first class postage prepaid, in each case given or addressed as
aforesaid.
SECTION 10. No Waivers. No failure or delay by the
Administrative Agent or any Banks in exercising any right, power or privilege
hereunder 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 provided in this
Guaranty, the Credit Agreement, the Notes, and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 11. Successors and Assigns. This Guaranty is for the
benefit of the Administrative Agent and the Banks and their respective
successors and assigns and in the event of an assignment of any amounts payable
under the Credit Agreement, the Notes, or the other Loan Documents, the rights
hereunder, to the extent applicable to the indebtedness so assigned, may be
transferred with such indebtedness. This Guaranty may not be assigned by the
Guarantors without the prior written consent of the Administrative Agent and the
Required Banks, and shall be binding upon the Guarantors and their respective
successors and permitted assigns.
SECTION 12. Changes in Writing. Neither this Guaranty nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing signed by the Guarantors and the Administrative Agent, with the
consent of the Required Banks.
158
SECTION 13. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER
OF JURY TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF GEORGIA. EACH OF THE GUARANTORS AND THE
ADMINISTRATIVE AGENT HEREBY SUBMITS TO THE NONEXCLUSIVE PERSONAL JURISDICTION IN
THE STATE OF GEORGIA, THE COURTS THEREOF AND THE UNITED STATES DISTRICT COURTS
SITTING THEREIN AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE
GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE GUARANTORS AND THE ADMINISTRATIVE AGENT HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 14. Taxes, etc. All payments required to be made by
the Guarantors hereunder shall be made without setoff or counterclaim and free
and clear of and without deduction or withholding for or on account of, any
present or future taxes, levies, imposts, duties or other charges of whatsoever
nature imposed by any government or any political or taxing authority pursuant
and subject to the provisions of Section 2.11(d) of the Credit Agreement, the
terms of which are incorporated herein by reference as to the Guarantors as
fully as if set forth herein, and for such purposes, the rights and obligations
of the Borrower under such Section shall devolve to the Guarantors as to
payments required to be made by the Guarantors hereunder.
SECTION 15. Additional Guarantors; Release of Guarantors.
Section 5.21 of the Credit Agreement provides that Significant Subsidiaries
which are not Guarantors must become Guarantors, by, among other things,
executing and delivering to the Administrative Agent a counterpart of this
Guaranty and the Contribution Agreement. Any Significant Domestic Subsidiary
which executes and delivers to the Administrative Agent a counterpart of this
Guaranty and the Contribution Agreement shall be a Guarantor for all purposes
hereunder. Under certain circumstances described in paragraph (b) of Section
5.21 of the Credit Agreement, a Guarantor which is to be sold may obtain from
the Administrative Agent a written release from this Guaranty pursuant to the
provisions of such paragraph and upon obtaining such written release, any such
former Guarantor shall no longer be a Guarantor hereunder. Each other Guarantor
consents and agrees to any such release and agrees that no such release shall
affect its obligations hereunder.
SECTION 16. Failure to Pay in Foreign Currency. If any the
Guarantor is unable for any reason to effect payment in a relevant Foreign
Currency as required by this Guaranty or if the Guarantor shall default in the
Foreign Currency, each Bank may, through the Administrative Agent, require such
payment to be made in Dollars in the Dollar Equivalent amount of such payment.
In any case in which the Guarantor shall make such payment in Dollars, the
Guarantor agrees to hold the Banks harmless from any loss incurred by the Banks
159
arising from any change in the value of Dollars in relation to such Foreign
Currency between the date such payment became due and the date of payment
thereof.
SECTION 17. Judgment Currency. If for the purpose of obtaining
judgment in any court or enforcing any such judgment it is necessary to convert
any amount due in any Foreign Currency into any other currency, the rate of
exchange used shall be the Administrative Agent's spot rate of exchange for the
purchase of the Foreign Currency with such other currency at the close of
business on the Foreign Currency Business Day preceding the date on which
judgment is given or any order for payment is made. The obligation of the
Guarantor in respect of any amount due from it hereunder shall, notwithstanding
any judgment or order for a liquidated sum or sums in respect of amounts due
hereunder or under any judgment or order in any other currency or otherwise be
discharged only to the extent that on the Foreign Currency Business Day
following receipt by the Administrative Agent of any payment in a currency other
than the relevant Foreign Currency the Administrative Agent is able (in
accordance with normal banking procedures) to purchase the relevant Foreign
Currency with such other currency. If the amount of the relevant Foreign
Currency that the Administrative Agent is able to purchase with such other
currency is less than the amount due in the relevant Foreign Currency,
notwithstanding any judgment or order, the Guarantor shall indemnify the Banks
for the shortfall.
SECTION 18. Subrogation. The Guarantor hereby agrees that it
will not exercise any rights which it may acquire by way of subrogation under
this Guaranty, by any payment made hereunder or otherwise, unless and until all
of the Guaranteed Obligations shall have been paid in full. If any amount shall
be paid to the Guarantor on account of such subrogation rights at any time when
all of the Guaranteed Obligations shall not have been paid in full, such amount
shall be held in trust for the benefit of the Administrative Agent and the Banks
and shall forthwith be paid to the Administrative Agent to be credited and
applied upon the Guaranteed Obligations, whether matured or unmatured, in
accordance with the terms of the Credit Agreement.
160
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to
be duly executed, under seal, by its respective authorized officer as of the
date first above written.
GOLD XXXXX, a Delaware corporation (SEAL)
By:
----------------------------------------------
Title:
-------------------------------------
Address: c/o Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
RASCHEL FASHION INTERKNITTING, LTD.,
a New York corporation (SEAL)
By:
----------------------------------------------
Title:
-------------------------------------
Address: c/o Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
CURTAINS AND FABRICS, INC.,
a New York corporation (SEAL)
By:
----------------------------------------------
Title:
-------------------------------------
Address: c/o Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
161
EXHIBIT L
---------
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into
as of May 26, 2000 by and among XXXXXXXX XXXXX, INC. (the "Borrower"), and each
of the undersigned corporations respectively organized under the laws of the
states set forth on the signature pages below their names (collectively, the
"Subsidiary Guarantors", which term shall include any Significant Domestic
Subsidiary of the Borrower which becomes a Guarantor pursuant to the last
paragraph hereof, Section 15 of the Guaranty referred to below and Section 5.21
of the Credit Agreement referred to below, all of whom collectively are the
Subsidiary Guarantors). The Borrower and each of the Subsidiary Guarantors are
sometimes hereinafter referred to individually as a "Contributing Party" and
collectively as the "Contributing Parties".
W I T N E S E T H:
WHEREAS, pursuant to that certain Credit Agreement, dated as
of even date herewith among the Borrower, the Banks party thereto, Wachovia
Bank, N.A., as Administrative Agent, First Union National Bank, as Syndication
Agent and Bank One, N.A., as Documentation Agent (such agreement, as the same
may from time to time be amended, modified, restated or extended, being
hereinafter referred to as the "Credit Agreement"; capitalized terms used herein
shall have the meanings ascribed thereto in the Credit Agreement), the Banks
have agreed to extend financial accommodations to the Borrower;
WHEREAS, as a condition, among others, to the willingness of
the Administrative Agent and the Banks to enter into the Credit Agreement, they
have required that each Subsidiary Guarantor, execute and deliver that certain
Guaranty, dated as of even date herewith (such agreement, as the same may from
time to time be amended, modified, restated or extended, being hereinafter
referred to as the "Guaranty"), pursuant to which, among other things, the
Subsidiary Guarantors have jointly and severally agreed to guarantee the
"Guaranteed Obligations" (as defined in the Guaranty); and
WHEREAS, each Subsidiary Guarantor is a direct or indirect
subsidiary of the Borrower and is engaged in businesses related to those of the
Borrower and each other Subsidiary Guarantor, and each of the Subsidiary
Guarantors will derive direct or indirect economic benefit from the
effectiveness and existence of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, and to induce each Subsidiary Guarantor to
enter into the Guaranty, it is agreed as follows:
To the extent that any Subsidiary Guarantor shall, under the
Guaranty, make a payment (a "Subsidiary Guarantor Payment") of a portion of the
Guaranteed Obligations, then, without limiting its rights of subrogation against
the principal, such Subsidiary Guarantor shall be entitled to contribution and
indemnification from, and be reimbursed by, each of the other Contributing
Parties in an amount, for each such Contributing Party other than the Borrower,
162
equal to a fraction of such Subsidiary Guarantor Payment, the numerator of which
fraction is such Contributing Party's Allocable Amount and the denominator of
which is the sum of the Allocable Amounts of all of the Contributing Parties.
As of any date of determination, the "Allocable Amount" of
each Contributing Party shall be equal to the maximum amount of liability which
could be asserted against such Contributing Party hereunder with respect to the
applicable Subsidiary Guarantor Payment without (i) rendering such Contributing
Party "insolvent" within the meaning of Section 101(31) of the Federal
Bankruptcy Code (the "Bankruptcy Code") or Section 2 of either the Uniform
Fraudulent Transfer Act (the "UFTA") or the Uniform Fraudulent Conveyance Act
(the "UFCA"), (ii) leaving such Contributing Party with unreasonably small
capital, within the meaning of Section 548 of the Bankruptcy Code or Section 4
of the UFTA or Section 5 of the UFCA, or (iii) leaving such Contributing Party
unable to pay its debts as they become due within the meaning of Section 548 of
the Bankruptcy Code or Section 4 of the UFTA or Section 6 of the UFCA.
This Agreement is intended only to define the relative rights
of the Contributing Parties, and nothing set forth in this Agreement is intended
to or shall impair the obligations of the Subsidiary Guarantors, jointly and
severally, to pay any amounts, as and when the same shall become due and payable
in accordance with the terms of the Guaranty.
The parties hereto acknowledge that the rights of contribution
and indemnification hereunder shall constitute assets in favor of each
Subsidiary Guarantor to which such contribution and indemnification is owing.
This Agreement shall become effective upon its execution by
each of the Contributing Parties and shall continue in full force and effect and
may not be terminated or otherwise revoked by any Contributing Party until all
of the Guaranteed Obligations shall have been indefeasibly paid in full (in
lawful money of the United States of America) and discharged and the Credit
Agreement and financing arrangements evidenced and governed by the Credit
Agreement shall have been terminated. Each Contributing Party agrees that if,
notwithstanding the foregoing, such Contributing Party shall have any right
under applicable law to terminate or revoke this Agreement, and such
Contributing Party shall attempt to exercise such right, then such termination
or revocation shall not be effective until a written notice of such revocation
or termination, specifically referring hereto and signed by such Contributing
Party, is actually received by each of the other Contributing Parties and by the
Administrative Agent at its notice address set forth in the Credit Agreement.
Such notice shall not affect the right or power of any Contributing Party to
enforce rights arising prior to receipt of such written notice by each of the
other Contributing Parties and the Administrative Agent. If any Bank grants
additional loans to the Borrower or takes other action giving rise to additional
Guaranteed Obligations after any Contributing Party has exercised any right to
terminate or revoke this Agreement but before the Administrative Agent receives
such written notice, the rights of each other Contributing Party to contribution
and indemnification hereunder in connection with any Subsidiary Guarantor
Payments made with respect to such loans or Guaranteed Obligations shall be the
same as if such termination or revocation had not occurred.
163
Section 5.21 of the Credit Agreement provides that Significant
Subsidiaries must become Guarantors, by, among other things, executing and
delivering to the Administrative Agent a counterpart of the Guaranty and of this
Contribution Agreement. Any Subsidiary which executes and delivers to the
Administrative Agent a counterpart of the Guaranty and of this Contribution
Agreement shall be a Subsidiary Guarantor for all purposes hereunder. Under
certain circumstances described in paragraph (b) of Section 5.21 of the Credit
Agreement, Guarantors which are to be sold may obtain from the Administrative
Agent a written release from the Guaranty pursuant to the provisions of such
sentence, and upon obtaining such written release, any such former Guarantor
shall no longer be a Subsidiary Guarantor or Contributing Party hereunder, and
such release shall automatically and without further action constitute a release
by each other Contributing Party of all obligations of such Subsidiary
hereunder. The Borrower and each other Subsidiary Guarantor consents and agrees
to any such release and agrees that no such release shall affect its obligations
hereunder, except as to the former Guarantor so released.
IN WITNESS WHEREOF, each Contributing Party has executed and
delivered this Agreement, under seal, as of the date first above written.
XXXXXXXX XXXXX, INC. (SEAL)
By:
----------------------------------------------
Title:
-------------------------------------
Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
GOLD XXXXX, a Delaware corporation (SEAL)
By:
----------------------------------------------
Title:
-------------------------------------
Address: c/o Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
164
RASCHEL FASHION INTERKNITTING, LTD.,
a New York corporation (SEAL)
By:
----------------------------------------------
Title:
-------------------------------------
Address: c/o Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
CURTAINS AND FABRICS, INC.,
a New York corporation (SEAL)
By:
----------------------------------------------
Title:
-------------------------------------
Address: c/o Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
165
EXHIBIT M
---------
FOREIGN STOCK PLEDGE AGREEMENT
THIS FOREIGN STOCK PLEDGE AGREEMENT (this "Agreement") dated as of May
26, 2000 by and between XXXXXXXX XXXXX, INC., a Delaware corporation, (the
"Company") and each of the undersigned corporations respectively organized under
the laws of the states set forth on the signature pages below their names
(collectively, the "Pledgor Subsidiaries", which term shall refer to any
Domestic Subsidiary of the Company which becomes a Pledgor Subsidiary pursuant
to Section 24 hereof and Section 5.22 of the Credit Agreement referred to below;
the Company and the Pledgor Subsidiaries being collectively referred to as the
"Pledgors" and individually as a "Pledgor" and WACHOVIA BANK, N.A., a national
banking association (in its individual capacity, "Wachovia") organized under the
laws of the United States of America, as collateral agent (in such capacity,
together with its successors and assigns, "Collateral Agent") for itself, and
for (i) The Prudential Insurance Company of America, The Variable Annuity Life
Insurance Company, American General Annuity Insurance Company, Massachusetts
Mutual Life Insurance Company and C.M. Life Insurance Company (collectively,
together with any other holders of Senior Notes, as defined below, from time to
time pursuant to the Note Purchase Agreements, as defined below, the "Senior
Note Holders") and (ii) Wachovia, First Union National Bank, Bank One, N.A. and
Branch Banking and Trust Company (collectively, together with any other Banks
parties from time to time to the Credit Agreement defined below, the "Banks";
the Senior Note Holders and the Banks being collectively referred to, together
with any Cash Management Services Provider, with respect to Cash Management
Services Obligations, and any Bank providing hedge arrangements giving rise to
Hedge Obligations, as defined in the Intercreditor Agreement, as "Secured
Parties"), in connection with that certain Intercreditor Agreement by and among
the Company, the Collateral Agent and the Secured Parties dated as of May 26,
2000 (as amended or otherwise modified from time to time, the "Intercreditor
Agreement").
W I T N E S S E T H:
WHEREAS, the Company, the Banks, Wachovia, as Administrative Agent,
First Union National Bank, as Syndication Agent, and Bank One, N.A., as
Documentation Agent, have entered into that certain Credit Agreement dated as of
the date hereof (as amended, supplemented, restated or otherwise modified from
time to time in accordance with its terms, the "Credit Agreement"; capitalized
terms used herein without definition have the meanings set forth in the Credit
Agreement), pursuant to which the Banks have agreed, subject to the terms
thereof, to make available to the Borrowers certain financial accommodations;
and
WHEREAS, Pursuant to the Intercreditor Agreement, the Secured Parties
have agreed that the Secured Obligations shall be equally and ratably secured
pursuant to this Agreement and any other Security Documents; the Secured Parties
have appointed Wachovia as the Collateral Agent to act on behalf of all Secured
Parties regarding the Pledged Collateral, all as more fully provided in the
Intercreditor Agreement; and the Secured Parties have entered into the
Intercreditor Agreement to, among other things, further define the rights,
duties, authority and responsibilities of the Collateral Agent and the
166
relationship between the Secured Parties regarding their interests in the
Pledged Collateral.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. The Pledge. Each of the Pledgors hereby pledges,
hypothecates, assigns, transfers, sets over and delivers unto the Collateral
Agent, and grants to the Collateral Agent, for the ratable benefit of the
Secured Parties, a security interest in all of each Pledgor's right, title and
interest in, to and under the following (collectively, the "Pledged
Collateral"): (a) all of the shares of common stock, equity interests and other
securities (collectively, "Securities") of the respective Significant Direct
Foreign Subsidiaries held by such Pledgor as set forth on Exhibit A attached
hereto (collectively, the "Issuers"); provided, however, that the Securities
pledged pursuant hereto shall not include (i) Securities owned by any of the
Pledgors in excess of Securities evidencing 65% of the voting power of each
class of capital stock owned by such Pledgor or (ii) to the extent that
applicable law requires that the applicable Issuer issue directors' qualifying
shares, such qualifying shares; (b) subject to the provisions of Section 5(b)
hereof, any additional Securities of any of the Issuers as may from time to time
be issued to the respective Pledgor or otherwise acquired by such Pledgor; (c)
any additional Securities of the Issuer as may hereafter at any time be
delivered to the Collateral Agent by or on behalf of the Pledgor; (d) any cash
or additional Securities or other property at any time and from time to time
receivable or otherwise distributable in respect of, in exchange for, or in
substitution of, any of the property referred to in any of the immediately
preceding clauses (a) through (c); and (e) any and all products and proceeds of
any of the foregoing, together with all other rights, titles, interests, powers,
privileges and preferences pertaining to said property.
Section 2. Obligations Secured. This Agreement is made, and the
security interest created hereby is granted to the Collateral Agent, to secure
the prompt performance and payment in full of the Secured Obligations.
Section 3. Representations and Warranties. Each of the Pledgors,
jointly and severally, hereby represents and warrants to the Collateral Agent as
follows:
(a) Validly Issued, etc. All of the Securities of each Issuer have been
validly issued and are fully paid and nonassessable.
(b) Title and Liens. Each Pledgor is, and, except as permitted by the
Credit Agreement, will at all times continue to be, the legal and beneficial
owner of the applicable Pledged Collateral and none of the Pledged Collateral is
subject to any Lien, except for the Lien granted hereby.
(c) Name; Chief Executive Office; Taxpayer ID Number. The correct
corporate name of each Pledgor, the chief executive office and principal place
of business of each Pledgor, the location of each Pledgor's books and records
relating to the respective Pledged Collateral, and the Federal Identification
number of each Pledgor is set forth on Exhibit B attached hereto. None of the
Pledgors has any offices or places of business other than as set forth on
Exhibit B.
167
(d) Authority, etc. Each of the Pledgors (i) has the power and
authority to pledge the Pledged Collateral in the manner hereby done or
contemplated and (ii) will defend its title or interest thereto or therein
against any and all Liens (other than the Lien created by this Agreement),
however arising, of all persons.
(e) No Approval. No consent or approval of any Governmental Authority
or any securities exchange was or is necessary to the validity of the pledges
effected hereby.
(f) Outstanding Shares. The Securities pledged by each of the Pledgors
hereunder constitute 65% of the issued and outstanding Shares of the respective
Significant Direct Foreign Subsidiary owned by each of the Pledgors.
Section 4. Covenants. Each of the Pledgors hereby unconditionally
covenants and agrees as follows:
(a) No Liens; No Sale of Pledged Collateral. None of the Pledgors will
create, assume, incur or permit or suffer to exist or to be created, assumed or
incurred, any Lien on any of the Securities, and will not, except as otherwise
permitted by the Credit Agreement, without the prior written consent of the
Collateral Agent (which consent shall not be unreasonably withheld), sell,
lease, assign, transfer or otherwise dispose of all or any portion of the
Securities (or any interest therein).
(b) Change of Locations, Name, Etc. Without giving the Collateral Agent
30 days prior written notice, none of the Pledgors will (i) change such
Pledgor's chief executive office, principal place of business, or the location
of its books and records relating to any of the Pledged Collateral or (ii)
change such Pledgor's name, identity or structure.
Section 5. Additional Shares.
(a) During the period this Agreement is in effect, without the consent
of the Collateral Agent, none of the Pledgors shall permit any of the Issuers to
issue any additional shares of capital stock or other equity securities or
interests, unless such additional shares have been delivered and pledged to the
Collateral Agent. Further, without the consent of the Collateral Agent, none of
the Pledgors shall permit any of the Issuers to amend or modify its respective
articles or certificate of incorporation (or other analogous organizational
document) in a manner which would materially adversely affect the voting,
liquidation, preference or other rights of a holder of the shares of stock
pledged hereunder.
(b) Each of the Pledgors agrees that, until this Agreement has
terminated in accordance with its terms, any additional Securities of any of the
Issuers at any time issued to any of the Pledgors or otherwise acquired by any
of the Pledgors shall be promptly delivered or otherwise transferred to the
Collateral Agent as additional Pledged Collateral and shall be subject to the
Lien of, and the terms and conditions of, this Agreement; provided that if
compliance with this Section 5(b) would result in more than 65% of the voting
power of any class of such capital stock of an Issuer being included in the
Pledged Collateral, the Pledgor shall pledge only such portion of such capital
stock as shall result in 65% of the voting power of such class of capital stock
owned by the Pledgor being included in the Pledged Collateral.
168
Section 6. Registration in Nominee Name, Denominations. The Collateral
Agent shall have the right (in its sole and absolute discretion) to hold the
Pledged Collateral in its own name as pledgee, the name of its nominee (as
Collateral Agent or as sub-agent) or the name of the applicable Pledgor,
endorsed or assigned in blank pursuant to a separate blank stock power or in
favor of the Collateral Agent or (where applicable) registered in the name of
the Collateral Agent in the relevant stock registry. Each of the Pledgors will
promptly give to the Collateral Agent copies of any notices or other
communications received by it with respect to Pledged Collateral registered in
the name of such Pledgor. The Collateral Agent shall at all times have the right
to exchange the certificates representing Pledged Collateral for certificates of
smaller or larger numbers of shares for any purpose consistent with this
Agreement.
Section 7. Voting Rights; Dividends, etc. So long as no Event of
Default shall have occurred and be continuing, with respect to any Securities:
(a) each of the Pledgors shall be entitled to exercise any and all
voting and/or consensual rights and powers accruing to an owner of the Pledged
Collateral or any part thereof for any purpose not inconsistent with the terms
and conditions of this Agreement or any agreement giving rise to or otherwise
relating to any of the Secured Obligations; provided, however, that none of the
Pledgors shall exercise, or refrain from exercising, any such right or power if
any such action would have a materially adverse effect on the value of such
Pledged Collateral in the reasonable judgment of the Collateral Agent;
(b) each of the Pledgors shall be entitled to retain and use any and
all cash dividends, interest and principal paid on the Pledged Collateral, but
any and all stock and/or liquidating dividends, other distributions in property,
return of capital or other distributions made on or in respect of Pledged
Collateral, whether resulting from a subdivision, combination or
reclassification of outstanding Securities of any of the Issuers which are
pledged hereunder or received in exchange for the respective Pledged Collateral
or any part thereof or as a result of any merger, consolidation, acquisition or
other exchange of assets or on the liquidation, whether voluntary or
involuntary, of any of the Issuers, or otherwise, shall be and become part of
the Pledged Collateral pledged hereunder and, if received by any of the
Pledgors, shall forthwith be delivered to the Collateral Agent to be held as
collateral subject to the terms and conditions of this Agreement.
(c) The Collateral Agent agrees to execute and deliver to each of the
Pledgors, or cause to be executed and delivered to each of the Pledgors, as
appropriate, at the sole cost and expense of such Pledgor, all such proxies,
powers of attorney, dividend orders and other instruments as such Pledgor may
reasonably request for the purpose of enabling such Pledgor to exercise the
voting and/or consensual rights and powers which such Pledgor is entitled to
exercise pursuant to clause (a) above and/or to receive the dividends which such
Pledgor is authorized to retain pursuant to subsection (b) above.
(d) Upon the occurrence and during the continuance of an Event of
Default, all rights of each the Pledgors to exercise the voting and/or
consensual rights and powers which such Pledgor is entitled to exercise pursuant
to subsection (a) above and/or to receive the dividends, interest and principal
that such Pledgor is authorized to receive and retain pursuant to subsection (b)
above shall cease, and all such rights thereupon shall become immediately vested
169
in the Collateral Agent, which shall have, to the extent permitted by law, the
sole and exclusive right and authority to exercise such voting and/or consensual
rights and powers which each of the Pledgors shall otherwise be entitled to
exercise pursuant to subsection (a) above and/or to receive and retain the
dividends which each of the Pledgors shall otherwise be authorized to retain
pursuant to subsection (b) above. Any and all money and other property paid over
to or received by the Collateral Agent pursuant to the provisions of this
subsection (b) shall be retained by the Collateral Agent as additional
collateral hereunder and shall be applied in accordance with the provisions of
Section 10. If any of the Pledgors shall receive any dividends or other property
which it is not entitled to receive under this Section, such Pledgor shall hold
the same in trust for the Collateral Agent, without commingling the same with
other funds or property of or held by such Pledgor, and shall promptly deliver
the same to the Collateral Agent upon receipt by such Pledgor in the identical
form received, together with any necessary endorsements.
Section 8. Event of Default Defined. For purposes of this Agreement,
"Event of Default" shall mean:
(a) any of the Pledgors shall fail to observe or perform any covenant
or agreement contained in Sections 4(a), 5, or 7(b) hereof;
(b) any of Pledgors shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by the
immediately preceding subsection (a)) for a period of 30 days after written
notice thereof has been given to such Pledgor by the Collateral Agent; and
(c) an Event of Default under and as defined in each of the Credit
Agreement and the Intercreditor Agreement shall occur and be continuing.
Section 9. Remedies upon Default.
(a) In addition to any right or remedy that the Collateral Agent may
have under the Intercreditor Agreement, the Credit Agreement, the other Loan
Documents or otherwise under applicable law, if an Event of Default shall have
occurred and be continuing, the Collateral Agent may exercise any and all the
rights and remedies of a secured party under the Uniform Commercial Code as in
effect in any applicable jurisdiction (the "Code") and may otherwise sell,
assign, transfer, endorse and deliver the whole or, from time to time, any part
of the Pledged Collateral at a public or private sale or on any securities
exchange, for cash, upon credit or for other property, for immediate or future
delivery, and for such price or prices and on such terms as the Collateral Agent
in its discretion shall deem appropriate. The Collateral Agent shall be
authorized at any sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to Persons who will represent and agree that
they are purchasing the Pledged Collateral for their own account in compliance
with the Securities Act and upon consummation of any such sale the Collateral
Agent shall have the right to assign, transfer, endorse and deliver to the
purchaser or purchasers thereof the Pledged Collateral so sold. Each purchaser
at any sale of Pledged Collateral shall take and hold the property sold
absolutely free from any claim or right on the part of any of the Pledgors, and
each of the Pledgors hereby waives (to the fullest extent permitted by
applicable law) all rights of redemption, stay and/or appraisal which any of the
170
Pledgors now has or may at any time in the future have under any applicable law
now existing or hereafter enacted. Each of the Pledgors agrees that, to the
extent notice of sale shall be required by applicable law, at least ten days'
prior written notice to the applicable Pledgor of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification, but notice given in any other reasonable
manner or at any other reasonable time shall constitute reasonable notification.
Such notice, in case of public sale, shall state the time and place for such
sale, and, in the case of sale on a securities exchange, shall state the
exchange on which such sale is to be made and the day on which the respective
Pledged Collateral, or portion thereof, will first be offered for sale at such
exchange. Any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as the Collateral Agent may
fix and shall state in the notice or publication (if any) of such sale. At any
such sale, the applicable Pledged Collateral, or portion thereof to be sold, may
be sold in one lot as an entirety or in separate parcels, as the Collateral
Agent may determine in its sole and absolute discretion. The Collateral Agent
shall not be obligated to make any sale of any of the Pledged Collateral if it
shall determine not to do so regardless of the fact that notice of sale of the
Pledged Collateral may have been given. The Collateral Agent may, without notice
or publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. In case the sale of all or any part of the
Pledged Collateral is made on credit or for future delivery, the Pledged
Collateral so sold may be retained by the Collateral Agent until the sale price
is paid by the purchaser or purchasers thereof, but the Collateral Agent shall
not incur any liability to any of the Pledgors in case any such purchaser or
purchasers shall fail to take up and pay for the Pledged Collateral so sold and,
in case of any such failure, such Pledged Collateral may be sold again upon like
notice. At any public sale made pursuant to this Agreement, the Collateral Agent
or any Secured Party (in accordance with Section 8 of the Intercreditor
Agreement), to the extent permitted by applicable law, may bid for or purchase,
free from any right of redemption, stay and/or appraisal on the part of any of
the Pledgors (all said rights being also hereby waived and released to the
extent permitted by applicable law), any part of or all the Pledged Collateral
offered for sale and may make payment on account thereof by using any claim then
due and payable to the Collateral Agent from any of the Pledgors as a credit
against the purchase price, and the Collateral Agent may, upon compliance with
the terms of sale and to the extent permitted by applicable law, hold, retain
and dispose of such property without further accountability to any of the
Pledgors therefor. For purposes hereof, a written agreement to purchase all or
any part of the Pledged Collateral shall be treated as a sale thereof; the
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and none of the Pledgors shall be entitled to the return of any Pledged
Collateral subject thereto, notwithstanding the fact that after the Collateral
Agent shall have entered into such an agreement all Events of Default may have
been remedied or the Secured Obligations may have been paid in full as herein
provided. Each of the Pledgors hereby waives any right to require any marshaling
of assets and any similar right.
(b) In addition to exercising the power of sale herein conferred upon
it, the Collateral Agent shall also have the option to proceed by suit or suits
at law or in equity to foreclose this Agreement and sell the Pledged Collateral
or any portion thereof pursuant to judgment or decree of a court or courts
having competent jurisdiction.
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(c) In addition to the foregoing, the Collateral Agent shall have all
other rights, powers and remedies which are available to it under any applicable
laws.
(d) The rights and remedies of the Collateral Agent under this
Agreement are cumulative and not exclusive of any rights or remedies which it
would otherwise have.
Section 10. Application of Proceeds of Sale and Cash. The Company
agrees to pay to the Collateral Agent all Enforcement Costs paid or incurred by
the Collateral Agent. This agreement in this Section 10 shall survive the
termination of this Agreement and the Lien on the Pledged Collateral. All
Enforcement Costs, together with interest thereon from the date of any demand
therefor until paid in full at a per annum rate of interest equal at all times
to the Default Rate, shall be paid by the Company to the Collateral Agent
whenever demanded by the Collateral Agent.
Any proceeds of the collection of the sale or other disposition of the
Collateral will be applied by the Collateral Agent in accordance with the terms
of Section 12 of the Intercreditor Agreement. If the sale or other disposition
of the Collateral fails to satisfy all of the Secured Obligations, the Debtors
shall remain liable to the Collateral Agent and the Secured Parties for any
deficiency. Any surplus from the sale or disposition of the Pledged Collateral
shall be paid to the respective Debtor or to any other party entitled thereto or
shall otherwise be paid over in a manner permitted by law after payment in full
of all Secured Obligations and the Enforcement Costs related to any such
payment.
As used herein, the term "Enforcement Costs" means all reasonable
expenses, charges, costs and fees whatsoever (including, without limitation,
reasonable attorneys' fees and expenses) of any nature whatsoever paid or
incurred by or on behalf of the Collateral Agent in connection with (a) the
collection or enforcement of any or all of the Secured Obligations or this
Agreement (including, without limitation, reasonable attorneys fees incurred
prior to the institution of any suit or other proceeding), (b) the creation,
perfection, collection, maintenance, preservation, defense, protection,
realization upon, disposition, sale or enforcement of all or any part of the
Collateral, (c) the monitoring, inspection, administration, processing,
servicing of any or all of the Secured Obligations and/or the Collateral, (d)
the preparation of this Agreement, the Security Documents, and the preparation
and review of lien and record searches, reports, certificates, and/or other
documents or information relating from time to time to the taking, perfection,
inspection, preservation, protection and/or release of a Lien on the Collateral,
the value of the Collateral, or otherwise relating to the Collateral Agent's or
any Secured Party's rights, powers and remedies under this Agreement or with
respect to the Collateral, and (e) all filing and/or recording taxes or fees and
all stamp and other similar taxes and fees payable or determined to be payable
in connection with the execution and delivery of this Agreement and any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes or fees, the Pledgors hereby agreeing to indemnify and save the
Collateral Agent and the Secured Parties harmless from and against such
liabilities
Section 11. Collateral Agent Appointed Attorney-in-Fact. From and after
the occurrence and during the existence of an Event of Default, each of the
Pledgors hereby constitutes and appoints the Collateral Agent as the
attorney-in-fact of each Pledgor with full power of substitution either in the
Collateral Agent's name or in the name of each of the Pledgors to do any of the
172
following with respect to any Securities and the related Pledged Collateral: (a)
to perform any obligation of any of the Pledgors hereunder in such Pledgor's
name or otherwise; (b) to ask for, demand, xxx for, collect, receive, receipt
and give acquittance for any and all moneys due or to become due under and by
virtue of any Pledged Collateral; (c) to prepare, execute, file, record or
deliver notices, assignments, financing statements, continuation statements,
applications for registration or like papers to perfect, preserve or release the
Collateral Agent's security interest in the Pledged Collateral or any of the
documents, instruments, certificates and agreements described in Section 13(b);
(d) to verify facts concerning the Pledged Collateral in its own name or a
fictitious name; (e) to endorse checks, drafts, orders and other instruments for
the payment of money payable to any of the Pledgors, representing any interest
or dividend or other distribution payable in respect of the Pledged Collateral
or any part thereof or on account thereof and to give full discharge for the
same; (f) to exercise all rights, powers and remedies which any of the Pledgors
would have, but for this Agreement, under the Pledged Collateral; and (g) to
carry out the provisions of this Agreement and to take any action and execute
any instrument which the Collateral Agent may deem necessary or advisable to
accomplish the purposes hereof, and to do all acts and things and execute all
documents in the name of each of the Pledgors or otherwise, deemed by the
Collateral Agent as necessary, proper and convenient in connection with the
preservation, perfection or enforcement of its rights hereunder. Nothing herein
contained shall be construed as requiring or obligating the Collateral Agent to
make any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by it, or to present or file any claim or notice, or to
take any action with respect to the Pledged Collateral or any part thereof or
the moneys due or to become due in respect thereof or any property covered
thereby, and no action taken by the Collateral Agent or omitted to be taken with
respect to the Pledged Collateral or any part thereof shall give rise to any
defense, counterclaim or offset in favor of the Pledgor or to any claim or
action against the Collateral Agent. The power of attorney granted herein is
irrevocable and coupled with an interest.
Section 12. Reimbursement of Collateral Agent. The Company agrees to
pay upon demand to the Collateral Agent the amount of any and all reasonable
expenses, including the reasonable fees disbursements and other charges of its
counsel and of any experts or agents, that the Collateral Agent may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or any sale of, collection from, or other realization upon, any
of the Pledged Collateral, (iii) the exercise or enforcement of any of the
rights of the Collateral Agent hereunder, or (iv) the failure by any of the
Pledgors to perform or observe any of the provisions hereof. Any such amounts
payable as provided hereunder shall be additional obligations secured hereby and
by the other Security Documents.
Section 13. Further Assurances. Each of the Pledgors shall, at its sole
cost and expense, take all action that may be necessary or desirable in the
Collateral Agent's sole discretion, so as at all times to maintain the validity,
perfection, enforceability and priority of the Collateral Agent's security
interest in the Pledged Collateral, or to enable the Collateral Agent to
exercise or enforce its rights hereunder, including without limitation (a)
delivering to the Collateral Agent, endorsed or accompanied by such instruments
of assignment as the Collateral Agent may specify, any and all chattel paper,
instruments, letters of credit and all other undertakings of guaranty and
documents evidencing or forming a part of the Pledged Collateral and (b)
executing and delivering financing statements, pledges, designations, notices
173
and assignments, in each case in form and substance satisfactory to the
Collateral Agent, relating to the creation, validity, perfection, priority or
continuation of the security interest granted hereunder. Subject to the
foregoing, each of the Pledgors agrees to take, and authorizes the Collateral
Agent to take on such Pledgor's behalf, any or all of the following actions with
respect to any Pledged Collateral as the Collateral Agent shall deem necessary
to perfect the security interest and pledge created hereby or to enable the
Collateral Agent to enforce its rights and remedies hereunder: (i) to register
in the name of the Collateral Agent any Pledged Collateral in certificated or
uncertificated form; (ii) to endorse in the name of the Collateral Agent any
Pledged Collateral issued in certificated form; and (iii) by book entry or
otherwise, identify as belonging to the Collateral Agent a quantity of
securities that constitutes all or part of the Pledged Collateral registered in
the name of the Collateral Agent. Notwithstanding the foregoing each of the
Pledgors agrees that Pledged Collateral which is not in certificated form or is
otherwise in book-entry form shall be held for the account of the Collateral
Agent. Each of the Pledgors hereby authorizes the Collateral Agent to execute
and file in all necessary and appropriate jurisdictions (as determined by the
Collateral Agent) one or more financing or continuation statements (or any other
document or instrument referred to in the immediately preceding clause (b)) in
the name of the applicable Pledgor and to sign such Pledgor's name thereto. Each
of the Pledgors authorizes the Collateral Agent to file any such financing
statement, document or instrument without the signature of such Pledgor to the
extent permitted by applicable law. To the extent permitted by applicable law, a
carbon, photographic, xerographic or other reproduction of this Agreement or any
financing statement is sufficient as a financing statement. Any property
comprising part of the Pledged Collateral required to be delivered to the
Collateral Agent pursuant to this Agreement shall be accompanied by proper
instruments of assignment duly executed by each of the Pledgors and by such
other instruments or documents as the Collateral Agent may reasonably request.
Section 14. Securities Laws. In view of the position of the Pledgors in
relation to the Pledged Collateral, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar applicable law hereafter enacted analogous
in purpose or effect, whether foreign or domestic (such Act and any such similar
applicable law as from time to time in effect being called the "Securities
Laws") with respect to any disposition of the Pledged Collateral permitted
hereunder. Each of the Pledgors understands that compliance with the Securities
Laws might very strictly limit the course of conduct of the Collateral Agent if
the Collateral Agent were to attempt to dispose of all or any part of the
Pledged Collateral in accordance with the terms hereof, and might also limit the
extent to which or the manner in which any subsequent transferee of any Pledged
Collateral could dispose of the same. Similarly, there may be other legal
restrictions or limitations affecting the Collateral Agent in any attempt to
dispose of all or part of the Pledged Collateral in accordance with the terms
hereof under applicable Blue Sky or other state securities laws or similar
applicable law analogous in purpose or effect. The Pledgor recognizes that in
light of the foregoing restrictions and limitations the Collateral Agent may,
with respect to any sale of the Pledged Collateral, limit the purchasers to
those who will agree, among other things, to acquire such Pledged Collateral for
their own account, for investment, and not with a view to the distribution or
resale thereof. Each of the Pledgors acknowledges and agrees that in light of
the foregoing restrictions and limitations, the Collateral Agent, in its sole
and absolute discretion, may, in accordance with applicable law, (a) proceed to
make such a sale whether or not a registration statement for the purpose of
registering such Pledged Collateral or part thereof shall have been filed under
174
the Federal Securities Laws and (b) approach and negotiate with a single
potential purchaser to effect such sale. Each of the Pledgors acknowledges and
agrees that any such sale might result in prices and other terms less favorable
to the seller than if such sale were a public sale without such restrictions. In
the event of any such sale, the Collateral Agent shall incur no responsibility
or liability for selling all or any part of the Pledged Collateral in accordance
with the terms hereof at a price that the Collateral Agent, in its sole and
absolute discretion, may in good xxxxx xxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or
if more than a single purchaser were approached. The provisions of this Section
will apply notwithstanding the existence of public or private market upon which
the quotations or sales prices may exceed substantially the price at which the
Collateral Agent sells.
Section 15. Indemnification. Each of the Pledgors agrees to indemnify
and hold the Collateral Agent and any corporation controlling, controlled by, or
under common control with, the Collateral Agent and any officer, attorney,
director, shareholder, agent or employee of the Collateral Agent or any such
corporation (each an "Indemnified Person"), harmless from and against any claim,
loss, damage, action, cause of action, liability, cost and expense or suit of
any kind or nature whatsoever (collectively, "Losses"), brought against or
incurred by an Indemnified Person, in any manner arising out of or, directly or
indirectly, related to or connected with this Agreement, including without
limitation, the exercise by the Collateral Agent of any of its rights and
remedies under this Agreement or any other action taken by the Collateral Agent
pursuant to the terms of this Agreement; provided, however, the Pledgor shall
not be liable to an Indemnified Person for any Losses to the extent that such
Losses result from the gross negligence or willful misconduct of such
Indemnified Person. The Pledgor's obligations under this section shall survive
the termination of this Agreement and the payment in full of the Secured
Obligations.
Section 16. Continuing Security Interest. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall remain in full
force and effect until it terminates in accordance with its terms. Each of the
Pledgors and the Collateral Agent hereby agree that the security interest
created by this Agreement in the Pledged Collateral shall not terminate and
shall continue and remain in full force and effect notwithstanding the transfer
to any of the Pledgors or any person designated by it of all or any portion of
the Pledged Collateral.
Section 17. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the grant of a security interest in the Collateral and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Intercreditor
Agreement, the Credit Agreement or any other Loan Document, any agreement with
respect to any of the Obligations or any other agreement or instrument relating
to any of the foregoing, (b) any change in the time, manner or place of the
payment of, or in any other term of, all or any of the Secured Obligations, or
any other amendment or waiver of or any consent to any departure from the
Intercreditor Agreement, the Credit Agreement, any other Loan Document, or any
other agreement or instrument relating to any of the foregoing, (c) any
exchange, release or nonperfection of any other collateral, or any release or
amendment or waiver of or consent to or departure from any guaranty, for all or
any of the Secured Obligations or (d) any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any of the
175
Pledgors in respect of the Secured Obligations or in respect of this Agreement
(other than the indefeasible payment in full of all the Secured Obligations).
Section 18. No Waiver. Neither the failure on the part of the
Collateral Agent to exercise, nor the delay on its part in exercising any right,
power or remedy hereunder, nor any course of dealing between the Collateral
Agent and any of the Pledgors shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power, or remedy hereunder
preclude any other or the further exercise thereof or the exercise of any other
right, power or remedy.
Section 19. Notices. Notices, requests and other communications
required or permitted hereunder shall be given in accordance with the applicable
terms of the Credit Agreement.
Section 20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 21. Amendments. No amendment or waiver of any provision of this
Agreement nor consent to any departure by any of the Pledgors herefrom shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 22. Binding Agreement; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that none of the Pledgors shall be permitted to
assign this Agreement or any interest herein or in the Pledged Collateral, or
any part thereof, or any cash or property held by the Collateral Agent as
collateral under this Agreement.
Section 23. Termination. Upon indefeasible payment in full of all of
the Bank Obligations, and termination of all Commitments under the Credit
Agreement, this Agreement shall terminate. Upon termination of this Agreement in
accordance with its terms the Collateral Agent agrees to take such actions as
the Company may reasonably request, and at the sole cost and expense of the
Company, (a) to return the Pledged Collateral to the applicable Pledgor, and (b)
to evidence the termination of this Agreement, including, without limitation,
the filing of any releases or any termination statements under the Uniform
Commercial Code.
Section 24. Additional Pledgors; Release of Pledgors. Section 5.22 of
the Credit Agreement provides that Domestic Subsidiaries which own or acquire a
Significant Direct Foreign Subsidiary and which are not Pledgors must become
Pledgors by, among other things, executing and delivering to the Agent a
counterpart to this Agreement. Any Domestic Subsidiary which executes and
delivers to the Agent a counterpart of this Agreement shall be a Pledgor for all
purposes hereunder. Under certain circumstances described in paragraph (b) of
Section 5.22 of the Credit Agreement, a Pledgor which is to be sold may obtain
from the Collateral Agent a written release from this Agreement pursuant to the
provisions of such paragraph and upon obtaining such written release, any such
former Pledgor shall no longer be a Pledgor hereunder. Each other Pledgor
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consents and agrees to any such release and agrees that no such release shall
affect its obligations hereunder.
Section 25. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provisions shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provisions or the remaining provisions of this Agreement.
Section 26. Headings. Section headings used herein are for convenience
only and are not to affect the construction of or be taken into consideration in
interpreting this Agreement.
Section 27. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original and all of which
shall constitute but one agreement.
[Signatures on Next Page]
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IN WITNESS WHEREOF, each of the Pledgors has executed and delivered
this Agreement under seal as of this the date first written above.
XXXXXXXX XXXXX, INC. (SEAL)
By:
----------------------------------------------
Name:
Title:
Agreed to, accepted and acknowledged as of the date first written above.
WACHOVIA BANK, N.A., as Collateral Agent
By:
-------------------------------------
Title:
178
EXHIBIT A
---------
PLEDGED COLLATERAL
---------------------------------------- -------------------------------------- --------------------------------------
ISSUER NO. OF SHARES CERTIFICATE NOS.
------ ------------- ----------------
---------------------------------------- -------------------------------------- --------------------------------------
Xxxxxxxx Xxxxx Xxxxxxx* 0,000 0
(Xxxxxx Xxxxxxx)
---------------------------------------- -------------------------------------- --------------------------------------
Grupo Ambar, S.A. de C.V. 7,338,067 6, 11, 12, 14, 17, 21, 23, 24, 26,
28, 29, 31, 33, 35, 36, 41, 43, 44,
(Mexico) 45,
---------------------------------------- -------------------------------------- --------------------------------------
Guilford de Tamaulipas, S.A. de C.V.* 49,999 1
(Mexico)
---------------------------------------- -------------------------------------- --------------------------------------
Guilford de Altamira, S.A. de C.V.* 49,999 1
(Mexico)
---------------------------------------- -------------------------------------- --------------------------------------
----------
* The description of the Securities set forth on this exhibit for each of these
companies represents 100% of the issued and outstanding Securities of such
companies, however, only 65% of such Securities is pledged pursuant to this
Agreement.
179
EXHIBIT B
---------
PLEDGORS
Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Federal Identification number: 00-0000000
180
EXHIBIT N
---------
FORM OF INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of May 26, 2000, among Wachovia Bank,
N.A., in its capacity as collateral agent hereunder (the "COLLATERAL AGENT"),
each of the holders of the Senior Notes specified on the signature pages hereof
(together with any of its affiliates, any Transferee, successor or assign,
subject to Section 22(e) hereof, the "SENIOR NOTE HOLDERS") and each bank
specified on the signature pages hereof (collectively, together with any such
bank's successors or assigns, subject to Section 22(e) hereof, referred to as
the "BANKS").
WHEREAS, Xxxxxxxx Xxxxx, Inc. (the "COMPANY") entered into Note
Purchase Agreements, each dated December 18, 1998, with the Senior Note Holders
(as any of them may be amended, modified, supplemented, refinanced or replaced
from time to time, the "NOTE PURCHASE AGREEMENTS");
WHEREAS, pursuant to the Note Purchase Agreements, the Company is
obligated to the Senior Note Holders with respect to, without limitation, the
obligations, indebtedness and liabilities of the Company incurred or arising
from time to time under the Senior Notes (whether in respect of principal,
interest, Yield-Maintenance Amount, as defined in the Note Purchase Agreements,
without regard to whether such Yield Maintenance Amount is currently due and
owing, or otherwise) and the obligations under the Note Purchase Agreements
(collectively the "SENIOR NOTE OBLIGATIONS");
WHEREAS, the Company, Wachovia Bank, N.A., as Administrative Agent (in
such capacity, and any successor in such capacity appointed pursuant to Section
7.10 of the Credit Agreement, the "BANK AGENT"), First Union National Bank, as
Syndication Agent, Bank One, N.A., as Documentation Agent, and each of the Banks
have entered into a Credit Agreement dated as of May 26, 2000 (as it may be
amended, modified, supplemented, refinanced or replaced from time to time the
"CREDIT AGREEMENT")";
WHEREAS, the Company is obligated to the Bank Agent and the Banks with
respect to, without limitation, all indebtedness, liabilities and obligations of
the Company to the Bank Agent and the Banks incurred or arising from time to
time under the Credit Agreement and each of the Loan Documents (collectively the
"BANK OBLIGATIONS);
WHEREAS, the Company and/or certain Subsidiaries owning the capital
stock of Significant Direct Foreign Subsidiaries has entered into the Foreign
Stock Pledge Agreement with respect to the Foreign Pledged Stock to secure the
Secured Obligations on a pro rata basis;
WHEREAS, the Company and/or certain Subsidiaries owning Intercompany
Notes have pledged and will pledge such Intercompany Notes to the Collateral
Agent pursuant to the Security Agreement to secure the Secured Obligations on a
pro rata basis.
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WHEREAS, pursuant to the Security Documents, the Collateral Agent has a
security interest in, security title to and Lien upon the following other
property of the Company and the Guarantors, to secure the Secured Obligations on
a pro rata basis, including (i) the Domestic Pledged Stock and (if applicable,
the Receivables Subsidiary Pledged Stock, subject to the release provisions of
Section 9.19 of the Credit Agreement, but in such event including the
Receivables Subsidiary Pledged Stock, (ii) the Foreign Pledged Stock, (iii) the
personal property described in the Security Agreement, and (iv) all of the
Plants and Other Real Property described in each Mortgage (such property,
together with the Foreign Pledged Stock, and together with any guarantee and all
other real and personal property in or upon which the Company or other Person
grants from time to time to the Secured Parties or to any Secured Party a lien,
security interest or other encumbrance to secure the Secured Obligations, being
collectively referred to as the "COLLATERAL").
WHEREAS, the Senior Note Holders and the Banks (sometimes collectively
referred to herein, together with any Cash Management Service Provider, with
respect to Cash Management Services Obligations, and any Bank or Affiliate
thereof providing hedge arrangements giving rise to Hedge Obligations, as the
"SECURED PARTIES", and individually referred to as a "SECURED PARTY") and the
Collateral Agent desire to set forth certain additional provisions regarding the
Secured Obligations;
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition have
the meanings set forth in the Credit Agreement, unless otherwise expressly
indicated. In addition, the following terms have the following meanings.
"ACTIONABLE DEFAULT" means both (a) an Event of Default shall have
occurred in respect of one or more of a Secured Party's Transaction Documents
and (b) all of the Secured Obligations of such Secured Party owing thereunder
shall have become due and payable.
"ACCOUNT MAINTENANCE CHARGES" means the normal and customary activity
fees and charges owed by the Company or any of the Guarantors in connection with
any account maintained by it with the Collateral Agent or any Secured Party
pertaining to the Collateral.
"ADDITIONAL LIEN" has the meaning set forth in Section 5 hereof.
"APPROVED DEPOSITORY" has the meaning set forth in the Security
Agreement.
"BANK" has the meaning set forth in the introductory paragraphs hereof.
"BANK AGENT" has the meaning set forth in the introductory paragraphs
hereof.
"BANK NOTES" means, collectively, the Notes, as such term is defined in
the Credit Agreement.
"BANKRUPTCY PROCEEDING" means the voluntary or involuntary dissolution,
winding up, liquidation, arrangement, reorganization, adjustment, protection,
relief or composition of the Company or its debts, whether in any bankruptcy,
insolvency, arrangement, reorganization, receivership, relief or similar
182
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of the Company or a Guarantor or
otherwise.
"BANKS" has the meaning set forth in the introductory paragraphs
hereof.
"BANK AGENT" has the meaning set forth in the introductory paragraphs
hereof.
"BANK GUARANTY" means the Guaranty, as defined in the Credit Agreement.
"BANK OBLIGATIONS" has the meaning set forth in the introductory
paragraphs hereof.
"BUSINESS DAY" means any day except a Saturday, Sunday or any other day
on which commercial banks in Georgia and New York are authorized by law to
close.
"CASH COLLECTIONS" has the meaning set forth in the Security Agreement.
"CASH DEPOSITS" has the meaning set forth in the Security Agreement.
"CASH MANAGEMENT AGREEMENTS" shall mean, individually and collectively,
as the context shall require any agreements between the Company, on the one
hand, and any Cash Management Service Provider, on the other hand, whether now
or hereafter in effect, pursuant to which such Cash Management Service Provider
provides Cash Management Services, and all amendments thereto, supplements
thereof, and replacements therefor.
"CASH MANAGEMENT SERVICES" shall mean cash management services for
operating, collection, payroll and trust accounts of the Company and/or its
Subsidiaries provided by any Cash Management Services Provider and/or its
Affiliates, including, without limitation, automatic clearing house services,
control disbursement services, electronic funds transfer services, information
reporting services, lockbox services, stop payment services, and wire transfer
services.
"CASH MANAGEMENT SERVICES OBLIGATIONS" shall mean any and all
obligations of the Company and/or any of its Subsidiaries to any Cash Management
Services Provider and/or any of its Affiliates under any of the Cash Management
Agreements or otherwise relating to any of the Cash Management Services.
"CASH MANAGEMENT SERVICES PROVIDER" means any Bank or Affiliate thereof
which provides Cash Management Services to the Company and/or any of its
Affiliates under any of the Cash Management Agreements or otherwise relating to
any of the Cash Management Services, in its capacity as the provider of such
services.
"COLLATERAL" has the meaning set forth in the introductory paragraphs
hereof, but also includes any Additional Lien, as contemplated in Section 5
hereof.
"COLLATERAL AGENT" has the meaning set forth in the introductory
paragraphs hereof; provided, that if any successor is appointed as Collateral
Agent pursuant to Section 20 hereof, it shall mean such successor.
183
"COLLATERAL RESERVE ACCOUNT" has the meaning set forth in the Security
Agreement.
"COMPANY" has the meaning set forth in the introductory paragraphs
hereof.
"CREDIT AGREEMENT" has the meaning set forth in the introductory
paragraphs hereof.
"DEFAULT NOTICE" has the meaning set forth in Section 9(a) hereof.
"DISPUTED PAYMENT" shall have the meaning set forth in Section 4
hereof.
"ENFORCEMENT COSTS" means all reasonable out-of-pocket costs and
expenses incurred by the Collateral Agent in connection with the enforcement and
collection of the Secured Obligations pursuant to the Security Documents,
including, without limitation, all reasonable attorneys fees and disbursements
actually incurred, and all other such costs and expenses described in and
incurred pursuant to any of the Security Documents, including, without
limitation, all "Enforcement Costs", as defined in the Security Agreement, and
similar costs incurred in enforcing any of the Mortgages or other Security
Documents.
"EVENT OF DEFAULT" means an Event of Default as such term is defined in
or pursuant to any of the Note Purchase Agreements or the Credit Agreement, as
the case may be.
"GUARANTOR" means any guarantor under the Bank Guaranty, the Senior
Note Guaranty or any Third Party Guarantee.
"HEDGE OBLIGATIONS" means all obligations of such Person with respect
to interest rate protection agreements, foreign currency exchange agreements or
other hedging arrangements (valued at 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 hedging agreement, if any, and in
any case net of any benefits of such Person).
"MAJORITY SENIOR NOTE HOLDERS" means Senior Note Holders holding a
majority in the aggregate principal amount of the Senior Note Obligations.
"NON-AVAILABLE PROCEEDS" shall have the meaning set forth in Section
3(a) hereof.
"NOTE PURCHASE AGREEMENTS" has the meaning set forth in the
introductory paragraphs hereof.
"PERCENTAGE INTEREST" with respect to a Secured Party shall mean that
percentage which is the equivalent of a fraction, the numerator of which is the
then aggregate amount (including but not limited to principal, interest and
premium, if any) outstanding of the Secured Obligations owing to such Secured
Party, and the denominator of which is the total of the amounts described in the
numerator for all Secured Parties.
"PERSON" means and includes an individual, a partnership, a joint
venture, a corporation, a limited liability corporation or partnership, a trust,
limited liability company, an unincorporated organization and a government or
any department or agency thereof.
184
"RECORDING EXPENSES" has the meaning set forth in Section 5.25 of the
Credit Agreement.
"REMEDIES DEMAND" has the meaning set forth in Section 11 hereof.
"REQUIRED SECURED PARTIES" means the Required Banks and the Majority
Senior Note Holders.
"RETURNING SECURED PARTY" shall have the meaning set forth in Section 4
hereof.
"SECURED OBLIGATIONS" means (i) the aggregate principal amount
outstanding from time under the Senior Notes, up to a maximum amount of
$145,000,000, and the other Senior Note Obligations, (ii) the aggregate
principal amount outstanding from time to time under the Bank Notes, up to a
maximum amount of $150,000,000, and the other Bank Obligations, (iii) all costs
and expenses incurred by the Bank Agent pursuant to the Credit Agreement; (iv)
all Recording Expenses incurred by the Collateral Agent pursuant to Section 5.25
of the Credit Agreement; (v) all Cash Management Services Obligations, limited,
however, as to this clause (v) to a maximum aggregate amount of $3,000,000 as to
all Cash Management Services Providers (prorated among them, if there are more
than one at the time of determination), and excluding from this clause (v) any
amounts arising from any failure of any Cash Management Services Provider and/or
any of its Affiliates to comply in any material respect with the Guide to the
Federal Reserve's Payments System Risk Policy as in effect from time to time;
(vi) all Hedge Obligations with any Bank or Affiliate thereof, limited, however,
as to this clause (vi) to a maximum aggregate amount of $5,000,000; and (vii)
all Enforcement Costs.
"SECURED PARTIES" has the meaning set forth in the introductory
paragraphs hereof.
"SECURITY AGREEMENT" means the Security Agreement described in the
Credit Agreement.
"SENIOR NOTE GUARANTY" means the Guaranty, as defined in the Note
Purchase Agreements.
"SENIOR NOTE OBLIGATIONS" has the meaning set forth in the introductory
paragraphs hereof.
"SENIOR NOTES" means, collectively, any Note issued under any of the
Note Purchase Agreements and each promissory note delivered in substitution or
exchange for any such Note.
"SHARING PAYMENT" shall mean any and all amounts received by any
Secured Party (i) as a result of any exercise of any right of set off or
banker's lien (whether by law, contract or otherwise), including, without
limitation, as a result of any Secured Party's claim being deemed a secured
claim under Section 506 of Title 11 of the United States Code, or other security
interest arising from, or in lieu of, such secured claim, (ii) otherwise from or
in respect of a Third Party Guarantee, the Bank Guaranty or the Senior Note
Guaranty or any proceeds thereof or (iii) any payment received from the Company
under any Transaction Document after an Actionable Default; provided, however,
that (a) no payment or receipt of Account Maintenance Charges, Cash Management
Services Obligations, Hedge Obligations or pursuant to a Receivables
Securitization Program shall constitute a "SHARING PAYMENt" hereunder, and (b)
so long as no Actionable Default has occurred or is continuing, but subject to
185
Section 8 hereof, no repayment, scheduled or unscheduled, nor prepayment, in
whole or in part, by the Company under the Note Purchase Agreements or the
Credit Agreement, as the case may be, from funds received other than pursuant to
clauses (i) or (ii) above, shall constitute a "SHARING PAYMENT" hereunder.
"THIRD PARTY GUARANTEE" shall have the meaning set forth in Section 5
hereof.
"TRANSACTION DOCUMENTS" means (i) as to the Senior Note Holders, the
Note Purchase Agreements, the Senior Notes, the Senior Note Guaranty and any
Third Party Guarantee, and (ii) as to the Banks, the Credit Agreement, the Bank
Notes, the Bank Guaranty and any Third Party Guarantee.
2. SHARING PAYMENTS. If a Secured Party obtains a Sharing Payment, such
Secured Party shall promptly purchase from each other Secured Party
participations in (or, if and to the extent specified by such other Secured
Parties, direct interests in) the Obligations owing to each such other Secured
Party, and shall make such other adjustments from time to time as shall be
equitable, to the end that all Secured Parties shall share the benefit of such
Sharing Payment as set forth in Section 3 hereof.
3. APPLICATION OF SHARING PAYMENTS. Any Sharing Payment shall be
applied and distributed as follows:
First, to the payment of any unpaid Account Maintenance Charges, and
all reasonable out-of-pocket costs and expenses (including reasonable attorneys
fees and disbursements actually incurred) incurred by any Secured Party in
collecting such Sharing Payment, of which Secured Party shall have notified,
with reasonable specificity, the other Secured Parties;
Second, to the Secured Parties pro rata in proportion to each Secured
Party's Percentage Interest then in effect in the Secured Obligations owing to
the Secured Parties (regardless of whether or not the maturity of any such
Secured Party's Secured Obligations shall have been accelerated) until all
amounts owing in respect of the Senior Note Obligations and the Bank Obligations
are paid in full; and
Third, the balance, if any, to any such Person as shall be entitled
thereto.
Non-cash Sharing Payments and Sharing Payments which, due to a restraining order
or otherwise, are not permitted to be applied to the Secured Obligations, or
because the receiving Secured Party determined it to be impracticable to divide
and apply such amounts to the payment of any of the Secured Obligations owed to
the Secured Parties (herein referred to as "NON-AVAILABLE PROCEEDS") shall be
held by the Secured Party so receiving such Non-available Proceeds as agent for
the Secured Parties. At such time as such Non-available Proceeds are later
converted to cash or such Non-available Proceeds are later permitted to be
applied, or later become practical to divide and may otherwise be applied,
against any of the Secured Obligations, such Non-available Proceeds shall
promptly be divided and paid at such time in accordance herewith.
Each Secured Party shall distribute all Sharing Payments, other than
Non-available Proceeds, to the other Secured Parties pursuant to clause Second
above. Prior to making such distribution, such Secured Party may apply such
186
Sharing Payments pursuant to clause First above, with respect to any reasonable
out-of-pocket costs and expenses of such Secured Party for amounts then known,
and may retain as a reserve such portion of such Sharing Payments as it may
reasonably determine to be sufficient to cover such costs and expenses that have
not yet been determined. As soon as it determines that any portion of such
Sharing Payments are no longer required to be held in such reserve, such Secured
Party shall distribute the same to the other Secured Parties.
Each Secured Party agrees that any sums and amounts received by such
Secured Party pursuant to this Section shall be applied to the payment of the
Secured Obligations held by such Secured Party as such Secured Party shall
determine in its sole discretion.
4. PAYMENT INVALIDATED. If, during the course of, or pursuant to, any
Bankruptcy Proceeding, a Secured Party (the "RETURNING SECURED PARTY") is
required by a court or other tribunal of competent jurisdiction to disgorge,
refund, rebate or otherwise return any distribution of any Sharing Payments
received by such Secured Party pursuant to Section 2 hereof (such Returning
Secured Party's portion of such payment or distribution referred to herein as a
"DISPUTED PAYMENT") received by such Returning Secured Party to any trustee
presiding over such Bankruptcy Proceeding or to any other Person (whether by
reason of the fact that such Disputed Payment constituted or was alleged to
constitute a preference, a fraudulent conveyance or for such other reason as
such court or tribunal shall specify), each other Secured Party shall
immediately pay to the Returning Secured Party its pro rata share of such
Disputed Payment from amounts actually received by such other Secured Party. For
purposes of this Section 4, such pro rata share shall be calculated as of the
date the Returning Secured Party is required to make such payment to any such
trustee or other Person.
5. ADDITIONAL COLLATERAL. Each of the Secured Parties hereby covenants
and agrees that (i) such Secured Party will not accept from any Person on behalf
of the Company or any Subsidiary any guarantee (a "THIRD-PARTY GUARANTEE") of
any of the Secured Obligations or any other obligations owing to such Secured
Party under any of the Transaction Documents unless such Guarantor also
guarantees substantially contemporaneously, by the same or separate instrument,
the payment of all of the Secured Obligations owing to all Secured Parties (or,
if such Third-Party Guarantee guarantees only a portion thereof owing to such
Secured Party, such Secured Party will not accept such Third-Party Guarantee
unless such Guarantor simultaneously guarantees the same proportion of Secured
Obligations owing to the other Secured Parties) and (ii) such Secured Party will
not take, accept or obtain any security interest in, or lien or encumbrance upon
(an "ADDITIONAL LIEN"), any assets of any of the Company or any Subsidiary or
any other Person (other than assets which, if obtained by the Secured Party,
would constitute a Sharing Payment) to secure the payment and performance of the
Secured Obligations or any other obligations owed to such Secured Party under
any of the Transaction Documents except by virtue of the Collateral Agent's
being granted a security interest in, or lien upon, such assets, in either case,
pursuant to documents in form and substance satisfactory to all of the Secured
Parties, to secure the Secured Obligations pro rata.
6. TURNOVER OF SHARING PAYMENTS. If a Secured Party acquires custody,
control or possession of any Sharing Payments other than pursuant to the terms
of this Agreement, such Secured Party shall hold such Sharing Payments in trust
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for the parties entitled thereto until such time as such Secured Party shall
have complied with the provisions of Section 2 hereof
7. APPOINTMENT OF COLLATERAL AGENT.
Each Secured Party designates and appoints Wachovia Bank, N.A. to serve
as the Collateral Agent under this Agreement and under the Security Documents.
Each Secured Party authorizes the Collateral Agent to act as agent for the
Secured Parties for the purposes of executing and delivering on behalf of the
Secured Parties the Security Documents and, subject to the provisions of this
Agreement, enforcing the Secured Parties' rights, powers and remedies in respect
of the Collateral and the Secured Obligations under the Security Documents,
together with such other powers as are reasonably incidental thereto.
8. RIGHTS OF SECURED PARTIES UNDER TRANSACTION DOCUMENTS.
Each of the Secured Parties may exercise its rights, remedies and
powers under those Transaction Documents to which it is a party, including,
without limitation, declare a default and accelerate such Secured Party's
Secured Obligations and pursue any of the following remedies against the
Company: (i) a judgment; (ii) binding mediation; or (iii) binding arbitration;
provided, however, notwithstanding anything contained in this Section 8 to the
contrary, except as expressly provided in this Agreement, none of the Secured
Parties may take any action against the Collateral, including, without
limitation, bidding at foreclosure sales, UCC sales or other similar sales,
except after obtaining the prior written consent of the Required Secured
Parties. The Collateral Agent and each of the Secured Parties agree that the
liens and security interests granted to the Collateral Agent under the Security
Documents shall at all times be shared by the Secured Parties as expressly
provided herein.
Notwithstanding anything to the contrary contained in any Transaction
Document or in any other document pertaining to the subject matters of this
Agreement and notwithstanding any priority in time of creation, recordation,
attachment or perfection of any lien or security interest in favor of any
Secured Party, each Secured Party agrees that, at all times, whether before,
after or during the pendency of any Bankruptcy Proceeding, each Secured Party
shall be pari passu with each other Secured Party with respect to the priority
of liens on and security interests in the Collateral and with respect to the
proceeds of the Collateral, as provided in Section 12 and the order of
application of moneys contained therein.
9. NOTIFICATION OF EVENT OF DEFAULT.
(a) Each Secured Party shall deliver to the Collateral Agent,
to each other Secured Party (or, as to the Banks, to the Bank Agent, which will
then distribute it to the Banks), and to the Company, a notice in writing of any
Event of Default and the nature thereof promptly (and in any event within 3
Business Days) after it learns of the occurrence thereof (any such notice being
a "DEFAULT NOTICE").
(b) Any Secured Party which has given a Default Notice shall
also give prompt (in any event within 3 Business Days) notice to the Collateral
Agent, to each other Secured Party (or, as to the Banks, to the Bank Agent,
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which will then distribute it to the Banks) and to the Company, upon learning of
any cure of any such Event of Default or upon any waiver thereof.
(c) No Secured Party shall be held liable for any good faith
failure to provide copies of any notice sent to the Collateral Agent to all
other Secured Parties (or, as to the Banks, to the Bank Agent) or to the Company
as provided in Section 9(a) or 9(b).
10. ACTIONABLE DEFAULT. Each Secured Party shall deliver to the
Collateral Agent, the Company and each other Secured Party (or, as to the Banks,
to the Bank Agent, which will then distribute it to the Banks) a notice in
writing of an Actionable Default and the nature thereof promptly (and in any
event within 1 Business Day) after the occurrence of an Actionable Default. Such
notice of Actionable Default may be included in a Default Notice given pursuant
to Section 9(a) hereof. Any Secured Party which has given a notice of an
Actionable Default shall be entitled to withdraw it in accordance with the terms
of the applicable Transaction Documents if the Actionable Default no longer
exists by delivering a written notice of withdrawal to the Collateral Agent,
with copies sent simultaneously to the other Secured Parties (or, as to the
Banks, to the Bank Agent, which will then distribute it to the Banks); provided,
that no such withdrawal may be made after the delivery of a Remedies Demand by
the Required Secured Parties. Any notice of the occurrence or withdrawal of an
Actionable Default given by any Secured Party or the Collateral Agent pursuant
hereto may be included in a Default Notice or notice of a withdrawal of an Event
of Default given pursuant to Section 9(b).
11. REMEDIES UPON ACTIONABLE DEFAULT. If and only if the Collateral
Agent shall have received a notice of an Actionable Default, and during such
time as such notice of an Actionable Default shall not have been withdrawn in
accordance with the provisions of Section 10, the Required Secured Parties may
send to the Collateral Agent in writing, with copies sent simultaneously to each
of the other Secured Parties (or, as to the Banks, to the Bank Agent, which will
then distribute it to the Banks) and the Company, a demand for the exercise by
the Collateral Agent, subject to the provisions of this Section 11, of rights,
powers and remedies hereunder and under the Security Documents (a "REMEDIES
DEMAND"). A Remedies Demand may be included in a notice of Actionable Default or
Notice of Default which also is a notice of Actionable Default. Upon the
issuance of a Remedies Demand, all of the Secured Obligations shall become due
and payable. After receipt of a Remedies Demand, the Collateral Agent shall
exercise such of the rights, powers and remedies available to it hereunder and
in the Security Documents as it is instructed to exercise by the Required
Secured Parties in writing directed to the Collateral Agent, with copies to the
other Secured Parties (which instructions may be included in the Remedies
Demand) and the Company. The date the Collateral Agent is so directed to
exercise any remedies pursuant to this Section 11 is the "Remedies Date";
provided, however, that with respect to any rights, powers and remedies
pertaining to the Cash Collections, the Cash Deposits, and/or notification to
Account Debtors pursuant to 9-502(1) of the applicable Uniform Commercial Code,
the Collateral Agent may (i) prohibit the withdrawal by the Company of any
Collateral maintained with any Secured Party or of any Cash Deposits, and (ii)
require the Company to deposit all Cash Collections either with the Collateral
Agent or an Approved Depository, and/or direct all Approved Depositories to
remit Cash Deposits to the Collateral Agent, pursuant to Section 3.1.11(b) of
the Security Agreement, if it determines in good faith that such prohibition
and/or requirement will promote and protect the interests of the Secured Parties
and maximize both the value of such Collateral and the present value of the
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ratable recovery by each of the Secured Parties on the Secured Obligations;
provided, further, that (1) the Secured Parties agree that none of them may
instruct the Collateral Agent to refrain from exercising any rights, powers or
remedies expressly authorized by the Required Secured Parties pursuant to this
Section, and any instruction in violation of this provision shall be of no force
or effect and shall be disregarded by the Collateral Agent, (2) if and to the
extent that the instructions of the Secured Parties are in conflict, then the
Collateral Agent shall exercise the rights, powers and remedies required by the
instructions which it determines, in good faith, will promote and protect the
interests of the Secured Parties and maximize both the value of the Collateral
and the present value of the recovery by each of the Secured Parties on the
Secured Obligations, and (3) once instructions have been received from the
Required Secured Parties, as required by and in accordance with this Section 11,
the actions of the Collateral Agent shall be governed thereby and the Collateral
Agent shall not take any further action which would be contrary thereto, except
as provided in subclause (2) above.
12. APPLICATION.
(a) The Collateral Agent, for the benefit of the Secured
Parties, shall establish the Collateral Reserve Account under the circumstance
provided in Section 3.1.11(b) of the Security Agreement, and thereafter maintain
the Collateral Reserve Account in accordance with the Security Agreement, which
shall bear a designation clearly indicating that funds deposited therein are
held for the benefit of the Secured Parties.
(b) Following a Remedies Demand, all monies held by the
Collateral Agent, constituting proceeds of Collateral shall, upon receipt by the
Collateral Agent be distributed by the Collateral Agent on a weekly basis on a
Business Day fixed by the Collateral Agent for the distribution of said monies,
commencing on the earlier of (i) 10 Business Days after the receipt of a notice
of Actionable Default pursuant to Section 10, or (ii) the date the aggregate
balance in the Collateral Reserve Accounts exceeds $250,000, and the balance of
which monies held from time to time by the Collateral Agent shall so long as any
amounts in excess of $250,000 remain in the Collateral Reserve Account, be
distributed on the corresponding date (or, if such corresponding date is not a
Business Day, the next succeeding Business Day) in each calendar week
thereafter, as follows:
FIRST: To the payment of all Account Maintenance
Charges, Enforcement Costs and other costs, expenses, liabilities and advances
made or incurred by the Collateral Agent or the Secured Parties, or any of them,
in connection with the administration, collection and enforcement of the Secured
Obligations and the sale or other realization upon the Collateral, including
reasonable attorneys' fees and expenses actually incurred of the Collateral
Agent and the customary fees of the Collateral Agent, which fees, costs,
expenses, liabilities and advances are unpaid as of such date of distribution;
SECOND: To each of the Secured Parties to the extent of
its Secured Obligations, calculated on the date of distribution (regardless of
whether such Secured Obligations have matured, by acceleration or otherwise),
for application to their respective Secured Obligations, in an amount equal to
its Percentage Interest in the funds available for distribution as of the date
of receipt of a Remedies Demand, without priority of any one over any other,
until the Secured Obligations have been paid in full; and
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THIRD: Any surplus then remaining shall be paid to the
Company or a Guarantor, as applicable, as its interests may appear, or as a
court of competent jurisdiction may direct.
(c) All monies received and held by the Collateral Agent in
the Collateral Reserve Account at any time shall be held by the Collateral Agent
in the Collateral Reserve Account for distribution to the Secured Parties
pursuant to this Section 12.
(d) In determining the amount of the Secured Obligations of
any Secured Party, the Collateral Agent shall be entitled to rely on a written
statement from each Secured Party sent to the Collateral Agent, with a copy sent
simultaneously to each of the Secured Parties and the Company, stating the
amounts which said Secured Party in good faith reasonably believes to be its
Secured Obligations (which statement shall itemize the various components
thereof, such as interest, principal, fees, etc.). Such statements shall be
conclusive or binding on any Secured Party which has failed to object to the
statement within 5 Business Days of receipt of a copy of said statement. Each
Secured Party agrees to give such a statement as to the amount of its Secured
Obligations: (i) as of the date of a Remedies Demand (which statement (x) from
or on behalf of the Secured Parties sending a notice of Actionable Default shall
accompany or be included in such notice, and (y) from or on behalf of the other
Secured Parties shall be given within 5 Business Days after receipt of a copy of
such notice); and (ii) as of the date of receipt of any written request of the
Collateral Agent, within 5 Business Days of receipt of such request. Prior to
making any distribution hereunder, the Collateral Agent shall make a request to
each Secured Party for a statement of Secured Obligations in accordance with
Clause (ii) of the immediately preceding sentence if the most recent statements
of Secured Obligations then in the possession of the Collateral Agent are more
than 30 days old. In addition to the foregoing, each Secured Party agrees that
it will from time to time provide such information that is available to it to
the Collateral Agent as may be necessary to enable the Collateral Agent to make
any calculation hereunder or otherwise required for any purpose hereof.
13. INSURANCE PROCEEDS; OTHER AMOUNTS.
(a) Following the occurrence of an Actionable Default, all
insurance proceeds (net of costs incurred in obtaining payment of such proceeds)
received, directly or indirectly, by the Collateral Agent pursuant to the
Security Documents, and all other amounts received by the Collateral Agent
constituting proceeds of Collateral, shall be deposited in the Collateral
Reserve Account and shall be held by the Collateral Agent as additional security
for the Secured Obligations and be deposited in the Collateral Reserve Account
and shall be held as cash collateral and not transmitted to the Company, except
as permitted by Section 3.1.11(b) of the Security Agreement.
(b) After a Remedies Demand, subject to the provisions of
Section 6, all amounts held in the Collateral Reserve Account shall be applied
as set forth in Section 12.
14. RELEASE OF COLLATERAL. The Collateral Agent will not release
Collateral from the Liens created by the Security Documents except that the
Collateral Agent shall (i) release Collateral disposed of pursuant to and in
accordance with Section 3.1.10 of the Security Agreement, (ii) release amounts
from the Collateral Reserve Account expressly authorized by Section 3.1.11 of
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the Security Agreement, (iii) release Collateral as expressly authorized by
Sections 5.05, 5.21(b), 5.22(b), 5.23 and 9.19 of the Credit Agreement or any of
provision of any of the Security Documents, (iv) release of all of the
Collateral upon termination of this Agreement pursuant to Section 22(i), in each
case set forth in clauses (i) through (iv), without any further consent of any
Secured Party, and (v) release any Collateral with the consent, or upon the
direction, of all of the Secured Parties. Upon any release of Collateral
pursuant to this Agreement or any Loan Document, the Collateral Agent will
deliver appropriate UCC-3's or other appropriate documents to the Company
confirming the release of such Collateral.
15. INVESTMENT OF FUNDS HELD BY COLLATERAL AGENT. The Collateral Agent
shall invest and reinvest monies held by it constituting proceeds of Collateral
from time to time in repurchase agreements with any major national brokerage
firm or bank (which may include the commercial banking department of the
Collateral Agent or any bank or trust company under common control with the
Collateral Agent) fully secured by obligations issued or guaranteed by the
United States, and subject at all times to the liens and security interests
granted by the Security Documents. All such investments and the interest and
income received thereon and therefrom and the net proceeds realized upon the
sale thereof shall be held by the Collateral Agent in the Collateral Reserve
Account, to be held and remitted pursuant to Section 3.1.11(b) of the Security
Agreement or distributed pursuant to Section 12, as applicable.
16. COVENANTS OF THE SECURED PARTIES. Each of the Secured Parties
hereby covenants and agrees that:
(a) It will give notice immediately to the Collateral Agent
and each other Secured Party(or, as to the Banks, to the Bank Agent, which will
then distribute it to the Banks) of its receipt of any Sharing Payment or a
Third-Party Guarantee or its desire for an Additional Lien.
(b) It will cooperate with the Collateral Agent in the
enforcement of the Security Agreement and otherwise in order to accomplish the
purposes of this Agreement.
17. ACTION ON INSTRUCTIONS OF SECURED PARTIES.
(a) Except as otherwise provided in this Agreement, and in
accordance with the provisions of Section 11, the Collateral Agent agrees to
make only such demands and give only such notices under the Security Documents
as it is instructed in writing to give, and to take only such action to enforce
the Security Documents and to only collect and/or dispose of the Collateral or
any portion thereof as it is instructed in writing to take, collect or dispose
of any of the Collateral pursuant to the applicable Uniform Commercial Code, by
the requisite Secured Parties. The Collateral Agent agrees not to release the
Collateral or any portion thereof except in accordance with Section 14. The
Collateral Agent shall not grant any consent or waiver in connection with,
execute any amendment to or modification of, or exercise any discretion granted
to it under any of the Security Documents, except in accordance with Section 11.
Notwithstanding anything herein to the contrary, the Collateral Agent shall not
be required to take any action that is in its opinion contrary to law or to the
terms of this Agreement or any of the Security Documents or would in its
reasonable opinion subject it or any of its agents, officers, employees or
directors to personal liability.
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(b) The Collateral Agent may at any time request directions
from the Secured Parties as to any course of action or other matter relating
hereto. The Collateral Agent shall be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions signed by (1)
as to any matters expressly provided for by this Agreement, the requisite
Secured Parties expressly provided in the relevant provisions hereof (including,
without limitation, Section 11, subject to the provisions of the second proviso
contained in Section 11 hereof, and paragraph (a) of this Section 17) and (2) as
to any matters not expressly provided for by this Agreement, in accordance with
instructions signed by the Required Secured Parties, and in all such cases, any
action taken or failure to act pursuant thereto shall be binding on all of the
Secured Parties.
18. RIGHTS, DUTIES AND RESPONSIBILITIES OF THE COLLATERAL AGENT.
(a) Prior to the receipt of a Notice of Default, the
Collateral Agent undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement.
(b) In the absence of the Collateral Agent's bad faith, the
Collateral Agent may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Collateral Agent conforming to the requirements of this
Agreement.
(c) After receipt of a Notice of Default and during the
continuance of an Event of Default, the Collateral Agent shall use the same
degree of care and skill in its exercise as a prudent Person would exercise or
use under the circumstances when acting on behalf of another Person in the
conduct of such other Person's affairs.
(d) No provision of this Agreement shall be construed to
relieve the Collateral Agent from liability for its own gross negligence or its
own willful misconduct, except that:
(i) this subsection shall not be construed to limit the
effect of paragraph (c) of this Section 18;
(ii) the Collateral Agent shall not be liable for any
error of judgment made in good faith by an officer of the Collateral Agent
unless the Collateral Agent was grossly negligent in ascertaining the pertinent
facts; and
(iii) the Collateral Agent shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the requisite Secured Parties, if and as
expressly required by and provided in this Agreement, unless (a) such omission
to act has been directed by the requisite Secured Parties in violation of the
second proviso contained in Section 6, in which case such direction shall be
disregarded by the Collateral Agent, as provided in such proviso, and in such
event the Collateral Agent shall not be liable for disregarding such direction,
or (b) such action or omission to act is expressly required by this Agreement to
be taken only in accordance with the direction of the Required Secured Parties
or all of the Secured Parties, and in either such event, the Collateral Agent
shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Required Secured
Parties or all of the Secured Parties, as applicable.
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(e) No provision of this Agreement shall require the
Collateral Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(f) (i) The Company shall indemnify the Collateral Agent, the
Secured Parties 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, or which the
Collateral Agent may reasonably incur as a result of the execution, delivery or
performance under the Security Documents, or as a result of the Collateral
Agent's serving as such thereunder (including, without limitation, the fees and
expenses set forth in Section 12, reasonable counsel fees and disbursements and
environmental liabilities arising from or related to any of the properties
described in the Security Documents), (ii) each Secured Party severally agrees
to indemnify the Collateral Agent, to the extent the Collateral Agent shall not
have been reimbursed by the Company, ratably in accordance with its Percentage
Interest, for any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses which the Collateral Agent may incur
as a result of the execution, delivery or performance under the Security
Documents or as a result of the Collateral Agent's serving as such thereunder
(including, without limitation, reasonable counsel fees and disbursements and
environmental liabilities arising from or related to any of the properties
described in the Security Documents and any actions taken by the Collateral
Agent, at the direction of the requisite Secured Parties, in each case if and as
expressly required and provided by this Agreement, to enforce any of the
Security Documents), and any disregard by the Collateral Agent of any directions
given to it in violation of the provisions of the second proviso contained in
Section 11, but in all such cases excluding any such losses, liabilities,
claims, damages or expenses incurred by reason of the gross negligence, willful
misconduct or bad faith of the Collateral Agent and excluding the normal
administrative costs and expenses incident to the performance of its agency
duties hereunder.
(g) The Collateral Agent shall not be responsible for any
recitals, statements, representations or warranties herein or in any of the
Security Documents or for insuring or inspecting the Collateral or for paying or
discharging any tax, assessment, governmental charge or lien affecting the
Collateral, nor shall the Collateral Agent be bound to ascertain or inquire as
to the performance or observance of any covenants, conditions or agreements of
the Company contained herein or in any of the Security Documents, including but
not limited to agreements by the Company to maintain insurance and pay taxes;
provided, however, that nothing in this subsection (g) shall relieve the
Collateral Agent of the performance of any of its duties specifically set forth
in this Agreement.
(h) The Collateral Agent makes no representation or warranty
as to the validity, sufficiency or enforceability of this Agreement or any of
the Security Documents or Transaction Documents against any other Person, as to
the value, title, condition, fitness for use of, or otherwise with respect to
the Collateral or as to the perfection or priority of the liens or security
interests created thereby.
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(i) The Collateral Agent may rely upon and shall be protected
in acting or refraining from acting upon and, absent a request by the Required
Secured Parties, shall not be bound to investigate the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, note or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties.
(j) The Collateral Agent may consult with counsel, appraisers,
engineers, accountants and other skilled persons to be selected by the
Collateral Agent and which are reasonably acceptable to the Required Secured
Parties and the written advice of any thereof shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reasonable reliance thereon.
19. COMPENSATION OF THE COLLATERAL AGENT.
Wachovia shall be entitled to compensation as Collateral Agent as
provided in a separate letter agreement with the Company. Any Collateral Agent
other than Wachovia which may hereafter be appointed (an "OTHER COLLATERAL
AGENT") shall be entitled to reasonable compensation for all services rendered
hereunder, as set forth below, and Wachovia and any Other Collateral Agent shall
also be entitled to reimbursement for all reasonable expenses, disbursements and
advances incurred or made by it, in and about the administration of the matters
herein provided for and in and about the foreclosure, enforcement or other
protection of this Agreement, the Collateral or the liens and security interests
provided in the Security Documents. The compensation of any Other Collateral
Agent shall be in accordance with a fee schedule to be agreed to from time to
time by the Company and the Other Collateral Agent, plus expenses and
disbursements. Any Other Collateral Agent shall provide a copy of any such
schedule to the Secured Parties and, upon any modification of the fee schedule,
the Collateral Agent shall give prompt written notice thereof to the Company and
to each Secured Party. Compensation and reimbursement of the Collateral Agent
pursuant to this Section 19 shall be paid by the Company upon demand.
20. RESIGNATION; REMOVAL; APPOINTMENT OF SUCCESSOR COLLATERAL AGENT.
The Collateral Agent may resign at any time by giving at least 30 days'
prior notice thereof to the Secured Parties (such resignation to take effect
upon the acceptance of a successor collateral agent as hereinafter provided).
The Collateral Agent may be removed as Collateral Agent hereunder for or without
cause, at any time by the Required Secured Parties. In the event of any such
resignation or removal of the Collateral Agent, the Required Secured Parties
shall thereupon have the right to appoint a successor Collateral Agent. If no
acceptable successor Collateral Agent shall have been so appointed by the
Required Secured Parties and shall have accepted such appointment within 30 days
after the retiring Collateral Agent's giving of notice of resignation or its
removal, the retiring Collateral Agent shall, on behalf of the Secured Parties,
appoint a successor collateral agent. Any successor collateral agent appointed
by the Collateral Agent pursuant to this Section 20 shall be a commercial bank
organized under the laws of the United States of America or any state thereof
and having a combined capital and surplus of at least $200,000,000. Upon the
acceptance of any appointment as collateral agent hereunder by a successor
collateral agent, such successor collateral agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
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or removed Collateral Agent, and the retiring or removed Collateral Agent shall
thereupon be discharged from its duties and obligations hereunder. After any
retiring or removed Collateral Agent's resignation or removal hereunder as
collateral agent, the provisions of this Agreement 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 collateral agent.
21. CO-AGENTS.
The Collateral Agent, with the consent of the Required Secured Parties,
shall have power to appoint one or more persons to act as co-agent or co-agents,
jointly with the Collateral Agent, or separate agent or separate agents, of all
or any part of the Collateral, and to vest in such person or persons, in such
capacity, such title to the Collateral or any part thereof, and such rights,
powers, duties, trusts or obligations as the Collateral Agent, with the consent
of the Required Secured Parties, may consider necessary or desirable in any case
only for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Collateral may at the time be located. Absent any specific
agreement to the contrary, any co-agent or co-agents appointed hereunder shall,
to the extent applicable, have the rights, obligations and duties of the
Collateral Agent hereunder.
22. MISCELLANEOUS.
(a) Each of the Secured Parties is hereby authorized to demand
specific performance of this Agreement at any time when any party shall have
failed to comply with any of the provisions of this Agreement applicable to it.
Each of the Secured Parties hereby irrevocably waives any defense based on the
adequacy of a remedy at law, which might be asserted as a bar to such remedy of
specific performance.
(b) All notices, requests, consents and other communications
made pursuant to the provisions hereof shall be in writing and shall be
delivered personally or mailed by first class registered or certified mail,
postage prepaid or by Federal Express or by telex or telecopier or by telephone
(if confirmed in writing as aforesaid) at the address specified on the signature
pages or such other address as may be furnished in writing by the Collateral
Agent or a Secured Party to the Collateral Agent and each other Secured Party
(or, as to the Banks, to the Bank Agent, which will then distribute it to the
Banks).
(c) This Agreement may be modified or waived only by an
instrument or instruments in writing signed by each of the Required Secured
Parties; provided, that, without the consent of the Company, no modification
shall (i) increase any of the obligations of the Company hereunder or (ii)
change the provisions of Sections 14 or 22(i) hereof.
(d) This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
agreement and any of the parties hereto may execute this Agreement by signing
any such counterpart.
(e) All of the terms of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective parties hereto
and their respective successors and assigns, and shall be binding upon and inure
to the benefit of and be enforceable by any holder or holders at any time of the
196
Obligations owed to a Secured Party, or any part thereof. No Secured Party may
assign or otherwise transfer any of its rights with respect to this Agreement or
any of the Secured Obligations, nor may any Bank assign or transfer or have
assumed any of its Commitments under the Loan Agreement, unless prior thereto
the assignee, transferee or assuming party executes such documents as the
Required Secured Parties may require in order that the assignee, transferee or
assuming party shall become a party to this Agreement as a Secured Party (but
the execution of an Assignment and Acceptance in the form attached to the Credit
Agreement shall satisfy the foregoing requirement as to any new Bank). Each
Senior Note Holder and the Bank Agent (as to the Banks) shall notify the
Collateral Agent of any such assignment and of the identity and notice address
of each transferee. Any Secured Party may obtain the current names and notice
addresses of the Secured Parties from the Collateral Agent upon request.
(f) The provisions of this Agreement are not intended, nor
shall they be construed to confer upon, or give the Company or any Guarantor or
any Person other than the Secured Parties and their respective successors and
assigns, any rights, remedies or claims hereunder or by reason hereof, and
except that the Company shall have the benefit of the provisions of Sections 14,
22(c) and 22(i) hereof.
(g) To the extent that there is a conflict or inconsistency
with terms of this Agreement and an agreement between any Secured Party and the
Company, or any amendment or modification of any such agreement, this Agreement
shall control as between the parties hereto.
(h) Each Secured Party shall execute and deliver such other
documents and instruments, in form and substance reasonably satisfactory to the
Required Secured Parties, and shall take such other action as the Required
Secured Parties may reasonably request, to effectuate and carry out the
provisions of this Agreement.
(i) This Agreement shall terminate with respect to the Senior
Note Holders automatically upon the indefeasible payment in full of all of the
Secured Obligations owed to them and, with respect to all Secured Parties, upon
the indefeasible payment in full of all of the Bank Obligations plus the
termination of all Commitments to lend under the Credit Agreement, and in the
latter event, the Collateral Agent shall release the Collateral pursuant to
Section 14.
(j) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
the remainder of such provision or the remaining provisions hereof or affecting
the validity or enforceability of such provision in any other jurisdiction and
the parties hereto shall use their best efforts to replace such provision.
(k) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(l) All personal pronouns used in this Agreement, whether used
in the masculine, feminine or neuter gender, shall include all other genders;
the singular shall include the plural, and the plural shall include the
singular. Titles of Articles and Sections in this Agreement are for convenience
only, and neither limit nor amplify the provisions of this Agreement.
197
(m) THE PARTIES HERETO ACKNOWLEDGE THAT ANY DISPUTE ARISING
OUT OF THIS AGREEMENT WILL BE BASED ON DIFFICULT AND COMPLEX FACTS. ACCORDINGLY,
EACH OF THE PARTIES HERETO HEREBY, TO THE FULLEST EXTENT PERMITTED BY LAW,
WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY DISPUTE, CONTROVERSY, SUIT, HEARING OR
OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE OBLIGATIONS, DUTIES AND
RIGHTS OF THE SECURED PARTIES AS SET FORTH HEREIN.
[Signatures Commence on Next Page.]
198
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
COLLATERAL AGENT:
WACHOVIA BANK, N.A.
By:
-----------------------------------------
Name:
Title:
Information for Notices:
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000-0000
Attention: Syndications Group
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
BANKS:
WACHOVIA BANK, N.A.
By:
-----------------------------------------
Name:
Title:
Information for Notices:
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000-0000
Attention: Syndications Group
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
199
FIRST UNION NATIONAL BANK
By:
-----------------------------------------
Name:
Title:
Information for Notices:
First Union National Bank
One First Union Center
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
200
BANK ONE, N.A.
By:
-----------------------------------------
Name:
Title:
Information for Notices:
Bank One, NA
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
201
BRANCH BANKING AND TRUST COMPANY
By:
-----------------------------------------
Name:
Title:
Information for Notices:
Branch Banking and Trust Company
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
202
NOTEHOLDERS:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:
-----------------------------------------
Name:
Title:
Information for Notices:
c/o Prudential Capital Group
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Managing Director
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
with a copy to:
c/o Prudential Capital Group
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Law Department
Telecopier: (000) 000-0000
203
THE VARIABLE ANNUITY LIFE
INSURANCE COMPANY
By:
-----------------------------------------
Name:
Title:
Information for Notices:
The Variable Annuity Life Insurance Company
x/x Xxxxx Xxxxxx Xxxx and Trust Company
Insurance Services WES2S
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Telecopier number: 000-000-0000
Confirmation number: 781-___-____
and
The Variable Annuity Life Insurance Company
c/o American General Corporation
Attn: Investment Xxxxxxxx Xxxxxxxxxx, X00-00
X.X. Xxx 0000
Overnight Mail: 0000 Xxxxx Xxxxxxx, X0000
Xxxxxxx, Xxxxx 0000-0000
Telecopier number: 000-000-0000
Tax I.D. Number 00-0000000
204
AMERICAN GENERAL ANNUITY
INSURANCE COMPANY
By:
-----------------------------------------
Name:
Title:
Information for Notices:
American General Annuity Insurance Company
and WEIB
c/o State Street Bank and Trust Company
Insurance Services WES2S
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Telecopier number: 000-000-0000
Confirmation number: 781-___-____
and
American General Annuity Insurance Company
c/o American General Corporation
Attn: Investment Xxxxxxxx Xxxxxxxxxx, X00-00
X.X. Xxx 0000
Overnight Mail: 0000 Xxxxx Xxxxxxx, X0000
Xxxxxxx, Xxxxx 0000-0000
Telecopier number: 000-000-0000
Tax I.D. Number 00-0000000
205
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc. as
Investment Adviser
By:
-----------------------------------------
Name:
Title:
Information for Notices:
Massachusetts Mutual Life Insurance Company
c/o Xxxxx X. Xxxxxx & Company Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Xx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
206
C. M. LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc. as
Investment Sub-Adviser
By:
-----------------------------------------
Name:
Title:
Information for Notices:
C.M. Life Insurance Company
c/o Xxxxx X. Xxxxxx & Company Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Xx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
207
ACKNOWLEDGMENT AND AGREEMENT
The undersigned, although not a party hereto, acknowledges and, to the
extent required, consents to the terms and conditions of the Intercreditor
Agreement attached hereto. As contemplated in Section 22(c) of the Intercreditor
Agreement, without the consent of the Company, no modification to the
Intercreditor Agreement shall (i) increase any of the obligations of the Company
thereunder or (ii) change the provisions of Sections 14 or 22(i) thereof.
Further, the undersigned agrees to (i) indemnify the Collateral Agent in
accordance with Section 18(f)(i) thereof, (ii) reimburse to the Collateral Agent
all Enforcement Costs and all Recording Expenses", and (iii) to pay to the
Collateral Agent the compensation provided in Section 19 thereof.
The undersigned shall execute and deliver such other documents and
instruments, in form and substance reasonably satisfactory to the Required
Secured Parties, and shall take such other action as the Required Secured
Parties may reasonably request, to effectuate and carry out the provisions of
the foregoing Intercreditor Agreement.
IN WITNESS WHEREOF, the party below has caused this Acknowledgment and
Agreement to be duly executed as of the date first above written.
XXXXXXXX XXXXX, INC.
By:
-----------------------------------------
Name:
Title:
CURTAINS AND FABRICS, INC.
By:
-----------------------------------------
Name:
Title:
GOLD XXXXX, INC.
By:
-----------------------------------------
Name:
Title:
RASCHEL FASHION INTERKNITTING, LTD.
By:
-----------------------------------------
Name:
Title:
208
EXHIBIT O
---------
SECURITY AGREEMENT
------------------
THIS SECURITY AGREEMENT (this "Agreement") is made as of May 26, 2000,
by and among XXXXXXXX XXXXX, INC., a Delaware corporation (the "Company"), each
of the undersigned corporations respectively organized under the laws of the
states set forth on the signature pages below their names (collectively, the
"Debtor Subsidiaries", which term shall refer to any Significant Domestic
Subsidiary of the Company which becomes a Debtor pursuant to Section 5.12 hereof
and Section 5.21 of the Credit Agreement; the Company and the Debtor
Subsidiaries being collectively referred to as the "Debtors") and WACHOVIA BANK,
N.A., a national banking association (in its individual capacity, "Wachovia")
organized under the laws of the United States of America, as collateral agent
(in such capacity, together with its successors and assigns, "Collateral Agent")
for itself, and for (i) The Prudential Insurance Company of America, The
Variable Annuity Life Insurance Company, American General Annuity Insurance
Company, Massachusetts Mutual Life Insurance Company and C.M. Life Insurance
Company (collectively, together with any other holders of Senior Notes, as
defined below, from time to time pursuant to the Note Purchase Agreements, as
defined below, the "Senior Note Holders") and (ii) Wachovia, First Union
National Bank, Bank One, N.A. and Branch Banking and Trust Company
(collectively, together with any other Banks party from time to time to the
Credit Agreement defined below, the "Banks"; the Senior Note Holders and the
Banks being collectively referred to, together with any Cash Management Services
Provider, with respect to Cash Management Services Obligations, as defined in
the Intercreditor Agreement described below, and any Bank providing hedge
arrangements giving rise to Hedge Obligations, as defined in the Intercreditor
Agreement, as "Secured Parties"), in connection with that certain Intercreditor
Agreement by and among the Debtors, the Collateral Agent and the Secured Parties
dated as of May 26, 2000 (as amended or otherwise modified from time to time,
the "Intercreditor Agreement").
RECITALS:
---------
A. In order to secure the Secured Obligations, but subject to the
provisions of Section 5.25 of the Credit Agreement, the Debtors have executed
this Agreement, which grants to the Collateral Agent a perfected and first
priority security interest in the Collateral owned by them, subject to the terms
of this Agreement and of the Intercreditor Agreement; and
B. Pursuant to the Intercreditor Agreement, the Secured Parties have
agreed that the Secured Obligations shall be equally and ratably secured
pursuant to this Agreement and any other Security Documents; the Secured Parties
have appointed Wachovia as the Collateral Agent to act on behalf of all Secured
Parties regarding the Collateral, all as more fully provided in the
Intercreditor Agreement; and the Secured Parties have entered into the
Intercreditor Agreement to, among other things, further define the rights,
duties, authority and responsibilities of the Collateral Agent and the
relationship between the Parties regarding their interests in the Collateral.
209
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which the parties
hereto hereby acknowledge, the parties hereto agree as follows:
DEFINITIONS
In addition to the definitional provisions contained in Section 5.10
hereof, as used in this Agreement, the terms defined in the Preamble and
Recitals hereto shall have the respective meanings specified therein, and the
following terms shall have the following meanings:
"Account Debtor" means the Person who is obligated with
respect to payment on any of the Collateral.
"Actionable Default" has the meaning set forth in the
Intercreditor Agreement.
"Approved Depositary" means either (a) the Collateral Agent or
(b) another depositary bank which is acceptable to the Collateral Agent, with
whom the Collateral Agent has entered into an agreement satisfactory to it and
pursuant to which, among other things, the Approved Depositary: (i) agrees to
waive any right of setoff with respect to the Collateral, the Cash Collections
and the Cash Deposits; (ii) acknowledges and agrees that the Collateral Agent
has a security interest in the Collateral, and that it is the bailee of the
Collateral Agent with respect thereto; and (iii) agrees that, upon notice from
the Collateral Agent of an Actionable Default, it will act strictly in
accordance with the instructions of the Collateral Agent with respect to deposit
balances of the Debtors held by it, including, without limitation, any
instructions of the Collateral Agent to remit such balances to it, and not in
accordance with any instructions of any of the Debtors, or any other Person.
"Bank Agent" has the meaning set forth in the Intercreditor
Agreement.
"Bank Obligations" means all indebtedness, liabilities and
obligations of the Company to the Administrative Agent (as defined in the Credit
Agreement) and the Banks incurred or arising from time to time under the Credit
Agreement and each of the Loan Documents (as defined in the Credit Agreement),
including principal, interest, fees, costs and indemnification amounts, and any
extensions or renewals thereof in whole or in part.
"Cash Collections" means all cash, checks, drafts, items and
other instruments for the payment of money received by the Debtors from proceeds
of Collateral.
"Cash Deposits" means all deposits of Cash Collections with
depository banks, including with the Approved Depositaries.
"Cash Management Services Obligations" has the meaning set
forth in the Intercreditor Agreement.
"Cash Management Services Provider" has the meaning set forth
in the Intercreditor Agreement.
210
"Closing Date" means May 26, 2000.
"Collateral" means and includes, with respect to the Debtors,
all of their presently existing or hereafter acquired or created accounts,
accounts receivable, contract rights, notes, Intercompany Notes, letters of
credit, drafts, instruments, acceptances, chattel paper, general intangibles,
investment property, leases, writings evidencing a monetary obligation or a
security interest in or a lease of goods, equipment, inventory and all other
goods and personal property of all items and types; all rights to receive the
payment of money or other consideration under present or future contracts
(including, without limitation, all rights to receive payments under presently
existing or hereafter acquired or created letters of credit), or by virtue of
merchandise sold, leased, licensed, assigned or otherwise disposed of, services
rendered or to be rendered, loans and advances made or other considerations
given, by or set forth in or arising out of any present or future chattel paper,
note, draft, lease, acceptance, writing, bond, insurance policy, instrument,
document or general intangible, and all extensions and renewals of any thereof;
all rights under or arising out of present or future contracts, agreements or
general interests in merchandise which gave rise to any or all of the foregoing,
including all goods; all claims (including commercial tort claims) or causes of
action now existing or hereafter arising in connection with or under any
agreement or document or by operation of law or otherwise; all collateral
security of any kind (including real property) given by any person with respect
to any of the foregoing; all returned, rejected or repossessed goods, the sale
or lease of which shall have given or shall give rise to any of the foregoing
and together with all returned or repossessed goods and all books, records,
computer tapes, computer programs, computer hardware, and ledger books arising
therefrom or relating thereto, all whether now owned or hereafter acquired or
arising; and all cash and non-cash proceeds and products of the foregoing;
provided, however, that "Collateral" shall not include rolling stock, vehicles,
trailers or any assets which are subject to a Lien which is permitted under
Section 5.16 of the Credit Agreement, if the agreement creating or relating to
such Lien prohibits junior Liens.
"Collateral Agent" has the meaning set forth in the Recitals.
"Collateral Reserve Account" means any non-interest bearing,
demand deposit account which the Debtors may be required to open and maintain
with the Collateral Agent pursuant to the requirements of Section 3.1.11.
"Credit Agreement" means that that certain Credit Agreement by
and among the Company, the Banks, Wachovia, as Administrative Agent, First Union
National Bank, as Syndication Agent, and Bank One, N.A., as Documentation Agent,
dated May 26, 2000, as amended or supplemented from time to time.
"Debtor" has the meaning set forth in the Recitals.
"Default Rate" means the highest rate of interest charged
under the Credit Agreement after the occurrence of a "default" or "event of
default" thereunder.
"Domestic Business Day" has the meaning set forth in the
Credit Agreement.
"Enforcement Costs" means all reasonable expenses, charges,
costs and fees whatsoever (including, without limitation, reasonable attorneys'
fees and expenses) of any nature whatsoever paid or incurred by or on behalf of
211
the Collateral Agent in connection with (a) the collection or enforcement of any
or all of the Secured Obligations or this Agreement (including, without
limitation, reasonable attorneys fees incurred prior to the institution of any
suit or other proceeding), (b) the creation, perfection, collection,
maintenance, preservation, defense, protection, realization upon, disposition,
sale or enforcement of all or any part of the Collateral, (c) the preparation of
this Agreement, the Security Documents, and the preparation and review of lien
and record searches, reports, certificates, and/or other documents or
information relating from time to time to the taking, perfection, inspection,
preservation, protection and/or release of a Lien on the Collateral, the value
of the Collateral, or otherwise relating to the Collateral Agent's or any
Secured Party's rights, powers and remedies under this Agreement or with respect
to the Collateral, and (d) all filing and/or recording taxes or fees and all
stamp and other similar taxes and fees payable or determined to be payable in
connection with the execution and delivery of this Agreement and any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes or fees, the Debtors hereby agreeing to indemnify and save the
Collateral Agent and the Secured Parties harmless from and against such
liabilities.
"Event of Default" has the meaning set forth in the
Intercreditor Agreement.
"Governmental Authority" means any nation or government, any
state or other political subdivision or agency thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Hedge Obligations" means all obligations of such Person with
respect to interest rate protection agreements, foreign currency exchange
agreements or other hedging arrangements (valued at 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 hedging
agreement, if any, and in any case net of any benefits of such Person).
"Identified Accounts" has the meaning set forth in the Credit
Agreement.
"Intercompany Note" means any intercompany note which is
executed by the Borrower or any Subsidiary in favor of any Debtor.
"Intercreditor Agreement" has the meaning set forth in the
Recitals.
"Laws" means all ordinances, statutes, rules, regulations,
orders, injunctions, writs, or decrees of any Governmental Authority.
"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 or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of any indebtedness or any
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, each Debtor 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.
212
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination 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 or properties of the Company
and its Subsidiaries, taken as a whole, (b) the rights and remedies of the
Secured Parties or the Collateral Agent under any of the Transaction Documents
or Security Documents or the ability of any Debtor to perform its respective
obligations under any of the Transaction Documents or Security Documents, or (c)
the legality, validity or enforceability of any of the Transaction Documents or
Security Documents.
"Non-Factored Accounts" has the meaning set forth in the
Credit Agreement.
"Note Purchase Agreements" means, individually and
collectively, as the context shall require, the Note Purchase Agreements, each
dated as of December 18, 1998, executed by the Borrower with (i) The Prudential
Insurance Company of America, (ii) The Variable Annuity Life Insurance Company
and American General Annuity Insurance Company, (iii) Massachusetts Mutual Life
Insurance Company, and (iv) C.M. Life Insurance Company, as amended or
supplemented from time to time.
"Person" means and includes 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
Governmental Authority.
"Recording Expenses" has the meaning set forth in the Credit
Agreement.
"Secured Obligations" means (i) the Bank Obligations and the
Senior Note Obligations, subject to the provisions of the Intercreditor
Agreement, (ii) all costs and expenses incurred by the Bank Agent pursuant to
the Credit Agreement; (iii) all Recording Expense incurred by the Collateral
Agent pursuant to Section 5.25 of the Credit Agreement, (iv) all Cash Management
Services Obligations, limited, however, as to this clause (iv) to a maximum
aggregate amount of $3,000,000 as to all Cash Management Services Providers
(prorated among them, if there are more than one at the time of determination),
and excluding from this clause (iv) any amounts arising from any failure of any
Cash Management Services Provider and/or any of its Affiliates to comply in any
material respect with the Guide to the Federal Reserve's Payments System Risk
Policy as in effect from time to time; (v) all Hedge Obligations with any Bank
or Affiliate thereof subject to the limitations contained in the Intercreditor
Agreement; and (vi) all Enforcement Costs.
"Secured Parties" has the meaning set forth in the Recitals.
"Security Documents" has the meaning set forth in the Credit
Agreement.
"Senior Note Holders" has the meaning set forth in the
Recitals.
"Senior Note Obligations" means all obligations, indebtedness
and liabilities of the Company to the Senior Note Holders with respect to,
without limitation, all of the obligations, indebtedness and liabilities of the
213
Company incurred or arising from time to time under the Senior Notes (whether in
respect of principal, interest, Yield Maintenance Amounts, as defined in the
Note Purchase Agreements, without regard to whether such Yield Maintenance
Amount is currently due and owing, or otherwise) and the obligations under the
Note Purchase Agreements
"Senior Notes" means, collectively, Senior Notes issued
pursuant to the Note Purchase Agreements to the Senior Note Holders, in the
following original amounts: (i) the $3,000,000 7.06% Senior Note and $97,000,000
7.06% Senior Note executed by the Borrower in favor of The Prudential Insurance
Company of America; (ii) the $10,000,000 7.06% Senior Note executed by the
Borrower in favor of The Variable Annuity Life Insurance Company; (iii) the
$15,000,000 7.06% Senior Note executed by the Borrower in favor of American
General Annuity Insurance Company; (iv) the $8,500,000 7.06% Senior Note, the
$5,600,000 7.06% Senior Note and the $4,900,000 7.06% Senior Note executed by
the Borrower in favor of Massachusetts Mutual Life Insurance Company; and (v)
the $1,000,000 7.06% Senior Note executed by the Company in favor of C. M. Life
Insurance Company, all such Senior Notes being dated as of December 18, 1998,
together with any amendments, supplements, renewals, replacements or
substitutions of any of such Senior Notes.
"Subsidiary" has the meaning set forth in the Credit
Agreement.
"Transaction Documents" has the meaning set forth in the
Intercreditor Agreement.
"UCC" means the New York Uniform Commercial Code.
ARTICLE 1
SECTION 1.1 Grant of Security Interest. As security for the Secured
Obligations, each of the Debtors hereby assigns, pledges and grants to the
Collateral Agent, for the ratable benefit of the Secured Parties, and agrees
that the Collateral Agent shall have a first priority (except as expressly
provided herein or under the Transaction Documents or other Security Documents)
perfected and continuing security interest in, all of the Collateral.
SECTION 1.2 Delivery of Letters of Credit. Contemporaneously with the
execution and delivery of this Agreement, each Debtor which is a beneficiary of
a letter of credit shall deliver such letter of credit to the Collateral Agent
in pledge hereunder.
SECTION 1.3 Pledge of Intercompany Notes. (a) As further security for
the Secured Obligations, each of the Debtors which owns Intercompany Notes
hereby assigns and pledges to and with the Collateral Agent, for the ratable
benefit of the Secured Parties, and grants to the Collateral Agent, for the
ratable benefit of the Secured Parties, a security interest in the Intercompany
Notes owned by it, and all of such Debtor's respective rights and privileges
with respect to the Intercompany Notes, and all income and profits thereon, and
all interests, dividends and other payments and distributions with respect
thereto, and all proceeds of the foregoing.
214
(b) Contemporaneously with the execution and delivery of each
Intercompany Note to a Debtor subsequent to the date hereof, such Debtor shall
deliver such Intercompany Note to the Collateral Agent in pledge hereunder. All
Intercompany Notes shall be delivered to the Collateral Agent by the relevant
Debtor pursuant hereto endorsed to the order of the Collateral Agent and
accompanied by any required transfer tax stamps, all in form and substance
satisfactory to the Collateral Agent.
SECTION 1.4 Release. The Collateral Agent will not release Collateral
from the Liens created by this Agreement or the other Security Documents except
that the Collateral Agent shall (i) release Collateral disposed of pursuant to
and in accordance with Section 3.1.10 hereof, (ii) release amounts from the
Collateral Reserve Account expressly authorized by Section 3.1.11 hereof, (iii)
release Collateral as expressly authorized by Sections 5.05, 5.21(b), 5.22(b),
5.23 and 9.19 of the Credit Agreement or any of provision of any of the Security
Documents, (iv) release of all of the Collateral upon termination of the
Intercreditor Agreement pursuant to Section 22(i) thereof, and (v) release any
of the Collateral with the consent, or upon the direction, of all of the Secured
Parties, pursuant to the Intercreditor Agreement. Upon any release of Collateral
pursuant to this Agreement or any Loan Document, the Collateral Agent will
deliver appropriate UCC-3's or other appropriate documents to the Debtor
confirming the release of such Collateral.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 Representations and Warranties. Each Debtor, jointly and
severally, represents and warrants to the Collateral Agent as follows:
2.1.1 Place(s) of Business and Location of Collateral. Set forth on
Exhibit A attached hereto and made a part hereof are (i) the address of each of
the Debtor's chief executive office and principal place of business, (ii) each
of the Debtor's other places of business, (iii) each place owned or leased by
any Debtor where the Collateral or any books or records relating thereto are
located, and (iv) each Debtor's Federal Identification number.
2.1.2 Corporate Existence and Power. Each Debtor 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, except where the failure to qualify would not have or reasonably be
expected to cause a Material Adverse Effect, and has all corporate powers and
all governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted, except where the failure to have any
such licenses, authorizations, consents and approvals could not have or
reasonably be expected to cause a Material Adverse Effect.
2.1.3 Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by each Debtor of this Agreement (i) are
within each Debtor's corporate powers, (ii) have been duly authorized by all
necessary corporate action, (iii) require no action by or in respect of or
filing with any Governmental Authority, other than the filing of UCC-1 financing
statements and any similar filings required to perfect or protect the Lien
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granted hereunder, (iv) do not contravene, or constitute a material default
under, any provision of applicable Laws or of the certificate or articles of
incorporation or by-laws of any Debtor or of any agreement, judgment,
injunction, order, decree or other instrument binding upon any Debtor, and (v)
do not result in the creation or imposition of any Lien on any asset of any
Debtor, other than under this Agreement or any of the Security Documents.
2.1.4 Binding Agreements. This Agreement constitutes the valid and
binding agreement of each Debtor enforceable in accordance with its terms
provided that the enforceability hereof is subject to general principles of
equity and to bankruptcy, insolvency and similar laws affecting the enforcement
of creditors' rights generally.
2.1.5 Title to Collateral. Each Debtor has good and marketable title to
its respective properties and assets which are included among or give rise to
the Collateral. Each Debtor has legal, enforceable and uncontested rights to use
freely such respective properties and assets, and such properties and assets are
subject to no Lien of any kind, except for (i) the Liens of the Collateral Agent
pursuant to this Agreement and the Security Documents, (ii) Liens on
Non-Factored Accounts and Identified Accounts pursuant to and subject to the
limitations contained in Section 5.23 of the Credit Agreement, and (iii) Liens
set forth on Exhibit B attached hereto; provided that such Exhibit B is based on
lien search reports received by the Collateral Agent as of the Closing Date,
and, to the extent lien search reports ordered on behalf of the Collateral Agent
have not been received as of the Closing Date, Exhibit B shall be modified after
all such lien search reports have been received to include additional permitted
Liens reasonably acceptable to the Collateral Agent based on such additional
lien search reports.
2.1.6 Bona Fide Rights of Payment. Each right of payment in the nature
of an account constituting a part of the Collateral arises or will arise under a
contract between one of the Debtors and an Account Debtor, or from the bona fide
sale or delivery of goods to or performance of services for, such Account
Debtor. No Governmental Authority is an Account Debtor with respect to any
portion of the Collateral.
2.1.7 Title to Intercompany Notes. For each Intercompany Note payable
to a Debtor, each Debtor owns such Intercompany Note, free and clear of any
Liens except for Liens of the Collateral Agent pursuant to this Agreement and
the Security Documents. None of the Debtors is or will become a party to or
otherwise bound by any agreement, other than this Agreement, the Intercreditor
Agreement and the Credit Agreement, which restricts in any manner the rights of
any present or future holders of any of the Intercompany Notes with respect
thereto.
2.1.8 Recitals. The Recitals to this Agreement are true, accurately
reflect the matters set forth herein and are hereby incorporated into and made a
part of this Agreement.
SECTION 2.2 Survival of Representations and Warranties. All
representations and warranties contained in or made under or in connection with
this Agreement shall survive the execution of this Agreement and the incurring
of any particular Secured Obligations.
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ARTICLE 3
COVENANTS AND AGREEMENTS OF THE DEBTORS
SECTION 3.1 Covenants. So long as any of the Secured Obligations (or
commitments therefor, if any) shall be outstanding, each Debtor agrees with the
Collateral Agent, for itself and the Secured Parties, as follows:
3.1.1 Conduct of Business and Maintenance of Existence, Compliance with
Laws, Etc. Except as otherwise permitted under the Credit Agreement, each Debtor
will (i) do or cause to be done all things necessary to preserve and to keep in
full force and effect its corporate existence and material rights and its
franchises, trade names, patents, trademarks and permits which are necessary for
the continuance of its business, and (ii) comply with all applicable Laws and
observe the valid requirements of Governmental Authorities, the noncompliance
with or the nonobservance of which would materially interfere with the
performance of its obligations hereunder or the Collateral Agent's interest in
the Collateral.
3.1.2 Business Names and Addresses. Within the previous 5 years, no
Debtor has conducted business under or been legally known by any name and,
except as permitted in Section 3.1.3, will not change its name to any other name
other than those disclosed on Exhibit A attached hereto and made a part hereof.
3.1.3 Certain Notices. The Company will notify the Collateral Agent and
each Secured Party: (a) not less than 30 days prior to (i) any change in the
name or corporate structure under which any Debtor conducts its business, and
(ii) the opening of any new place of business or any change in any of the places
where the books and records concerning the Collateral, or any part thereof, are
kept (and will provide to the Collateral Agent prior to any such change all
financing statements requested by it in connection with such new place of
business or location of books and records, as well as any other security
instrument that the Collateral Agent may require be executed by any Debtor in
order to constitute a Lien upon any new Collateral that may be located (as
permitted under Section 3.1.9 hereof) in said new place of business or books and
records); and (b) promptly, of (i) the commencement of any litigation affecting
any of the Collateral or the title thereto or rights therein, if it arises out
of disputes pertaining to the Collateral in an aggregate amount in excess of
$200,000 not covered by insurance, or (ii) the occurrence of any material
casualty or other loss affecting any material portion of the Collateral.
3.1.4 Maintenance of the Collateral; Insurance. Each Debtor will
maintain the Collateral in good working order, saving and excepting ordinary
wear and tear, and will not permit anything to be done to the Collateral which
may materially impair the value or use thereof. The Collateral Agent and each
Secured Party, or representatives designated by the Collateral Agent or such
Secured Party, respectively, shall be permitted to enter the premises of any
Debtor and examine, audit and inspect the Collateral at any reasonable time and
from time to time with reasonable prior notice. Each Debtor will promptly
furnish to the Collateral Agent and each Secured Party all such additional
information regarding the Collateral as the Collateral Agent or such Secured
Party may from time to time reasonably request. Each Debtor shall maintain
insurance on the Collateral consisting of goods with reputable companies, in
such amounts and against such risks as are consistent with industry standards,
with loss payable to the Collateral Agent as its interests may appear. Such
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insurance shall not be cancelable by any Debtor, unless with the prior written
consent of the Collateral Agent, or by such Debtor's insurer, unless with at
least (i) 10 Domestic Business Days advance written notice to the Collateral
Agent in the event of a cancellation for nonpayment of premiums or other
amounts, or (ii) 30 days advance written notice to the Collateral Agent in all
other events.
3.1.5 Recordings and Filings. Each Debtor shall: (a) execute and
deliver all financing documents (including, without limitation, UCC-1 and UCC-3
statements) required to be filed, registered or recorded in order to create, in
favor of the Collateral Agent, a first priority (subject to the express
provisions hereof), perfected Lien in the Collateral, to the extent such Lien
can be perfected under the UCC, in form and in sufficient number for filing,
registration, and recording in each office in each jurisdiction in which such
filings, registrations and recordations are required, and (b) deliver such
evidence as the Collateral Agent may deem satisfactory that all necessary filing
fees and all recording and other similar fees, and all taxes and other expenses
related to such filings, registrations and recordings will be or have been paid
in full.
3.1.6 Defense of Title and Further Assurances. At its own expense, each
of the Debtors will defend the title to the Collateral (or any part thereof),
and promptly upon request execute, acknowledge and deliver any financing
statement, renewal, affidavit, assignment, continuation statement, security
agreement, certificate, or other document the Collateral Agent may reasonably
require in order to perfect, preserve, maintain, continue, protect and/or extend
the Lien granted to the Collateral Agent under this Agreement and its priority
under the UCC. Each Debtor will (i) comply in all material respects with all
license agreements relating to any Collateral and, upon the request of the
Collateral Agent, use commercially reasonable efforts to obtain and furnish to
the Collateral Agent any consents from licensors to effect the purposes of this
Agreement, (ii) deliver to the Collateral Agent in pledge all instruments
evidencing the obligation to pay any of the Collateral not maintained or pledged
with the Collateral Agent, and (iii) from time to time do whatever the
Collateral Agent may reasonably request by way of obtaining, executing,
delivering, and/or filing financing statements, and other notices and amendments
and renewals thereof, and will take any and all steps and observe such
formalities as the Collateral Agent may reasonably request, in order to create
and maintain a valid Lien upon the Collateral, subject to no other Liens, except
as permitted hereby or by the Transaction Documents or other Security Documents.
Each Debtor agrees that a photocopy of a fully executed financing statement
shall be sufficient to satisfy for all purposes the requirements of a financing
statement as set forth in Article 9 of the applicable Uniform Commercial Code.
Each Debtor will comply in all material respects with all federal, state and
local laws and regulations affecting the Collateral.
3.1.7 Security, etc. Each Debtor agrees that the Collateral Agent may
at any time take such steps as the Collateral Agent deems reasonably necessary
to protect the Collateral Agent's Lien upon and interest in, and to preserve the
Collateral, whether at the business premises of any Debtor or elsewhere.
3.1.8 Other Liens. None of the Debtors will permit any Liens on or with
respect to all or any part of the Collateral, except as expressly permitted
hereby and by the Transaction Documents.
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3.1.9 Location of Collateral. Except as expressly permitted elsewhere
in this Agreement or except as may be permitted by the Transaction Documents,
without prior written consent of the Collateral Agent, none of the Debtors will
transfer or permit the transfer of any of the Collateral except (i) to a
location for which the security interest in favor of the Collateral Agent
therein shall remain perfected, (ii) to any other location so long as such
Debtor shall give the Collateral Agent written notice thereof and deliver
executed financing statements as reasonably requested by the Collateral Agent in
connection therewith within 30 days of such transfer, or (iii) for Collateral
with a book value of less than $50,000 to another location.
3.1.10 Disposition of Collateral. Without the prior written consent of
the Collateral Agent, acting at the direction of the requisite Secured Parties
pursuant to Section 11 of the Intercreditor Agreement, none of the Debtors will
sell, discount, allow credits or allowances, transfer, assign, extend the time
for payment on, convey, lease, assign, transfer or otherwise dispose of the
Collateral, or any part thereof, except, prior to an Event of Default, (i) sales
of inventory, discounts, co-op advertising, credits or credit allowances and
payment extensions in the ordinary course of business in accordance with the
customary business practices of such Debtor in effect on the date hereof, and
(ii) as otherwise expressly permitted by the Transaction Documents. Upon the
permitted sale, exchange or other disposition of any of the Collateral, the Lien
created and provided for herein, without break in continuity and without further
formality or act, shall continue in and attach to any proceeds thereof,
including, without limitation, any accounts, contract rights, general
intangibles, shipping documents, documents of title, bills of lading, warehouse
receipts, dock warrants, dock receipts, equipment and cash or non-cash proceeds,
and in the event of any unauthorized sale, shall continue in the Collateral
itself.
3.1.11 Depository Accounts; Collections. (a) Promptly after receipt of
notice from the Collateral Agent following the occurrence of an Event of Default
(regardless of whether it is an Actionable Default), each Debtor will use its
best efforts to cause all depositary banks in which Cash Collections are
deposited to become Approved Depositaries.
(b) With respect to all Account Debtors, promptly after receipt of
notice from the Collateral Agent following the occurrence of an Event of Default
(regardless of whether it is an Actionable Default): (i) each Debtor shall (x)
deposit all Cash Collections either with the Collateral Agent or an Approved
Depositary and (y) 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 as proceeds of the Collateral to the Collateral
Agent; and (ii) the Collateral Agent shall have the right in its sole discretion
to direct all Approved Depositaries to remit all Cash Deposits held by them to
the Collateral Agent as often as the Collateral Agent may require and the
Approved Depositaries are hereby authorized and directed to do so by each of the
Debtors upon the Collateral Agent's direction. All amounts received by the
Collateral Agent under this Section 3.1.11(b) shall be deposited in a Collateral
Reserve Account established by the respective Debtor upon the request of the
Collateral Agent. During the existence of an Event of Default, none of the
Debtors shall be entitled to draw on the funds held by any Approved Depositary
without the prior written consent of the Collateral Agent. Any Cash Collections
received by any of the Debtors after receipt of the notices set forth in this
Section 3.1.11(b) shall be deemed to be held in trust for the benefit of the
Collateral Agent and the Secured Parties as a part of the Collateral until
forwarded to the Collateral Agent for deposit in the Collateral Reserve Accounts
as required above. Unless and until an Actionable Default is in existence and
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subject to the provisions of Section 11 of the Intercreditor Agreement, the
Collateral Agent will transfer on each Business Day collected amounts in the
Collateral Reserve Accounts to the respective Debtor's operating account. During
the existence of an Actionable Default, and subject to the provisions of Section
11 of the Intercreditor Agreement, (1) the Collateral Agent will apply collected
amounts in the Collateral Reserve Accounts to the Secured Obligations pursuant
to Section 12 of the Intercreditor Agreement, and (2) the Collateral Agent may,
additionally, at any time in its sole discretion or if requested in writing by
the requisite Secured Parties pursuant to Section 11 of the Intercreditor
Agreement, direct Account Debtors to make payments on the Collateral, or
portions thereof, directly to the Collateral Agent, and such Account Debtors are
hereby authorized and directed to do so by each of the Debtors upon the
Collateral Agent's direction, and the funds so received shall be also deposited
in the respective Collateral Reserve Account, or, at the election of the
Collateral Agent, upon its receipt thereof, be applied directly to repayment of
the Secured Obligations as set forth in the Intercreditor Agreement.
ARTICLE 4
RIGHTS AND REMEDIES UPON DEFAULT
SECTION 4.1 Rights and Remedies, etc.
4.1.1 General Rights and Remedies. If any Actionable Default is in
existence, then, in each and every such case, the Collateral Agent may, at its
option exercised from time to time, and at the written direction of the
requisite Secured Parties will, subject to and as provided in Section 11 of the
Intercreditor Agreement, at any time thereafter while such Actionable Default is
continuing, exercise any rights, powers and remedies available to the Collateral
Agent under this Agreement, the Intercreditor Agreement and applicable Laws.
4.1.2 Enforcement Costs; Application of Proceeds. The Company agrees to
pay to the Collateral Agent all Enforcement Costs paid or incurred by the
Collateral Agent. This agreement in this Section 4.1.2 shall survive the
termination of this Agreement and the Lien on the Collateral. All Enforcement
Costs, together with interest thereon from the date of any demand therefor until
paid in full at a per annum rate of interest equal at all times to the Default
Rate, shall be paid by the Company to the Collateral Agent whenever demanded by
the Collateral Agent.
Any proceeds of the collection of the sale or other disposition of the
Collateral will be applied by the Collateral Agent in accordance with the terms
of Section 12 of the Intercreditor Agreement. If the sale or other disposition
of the Collateral fails to satisfy all of the Secured Obligations, the Debtors
shall remain liable to the Collateral Agent and the Secured Parties for any
deficiency. Any surplus from the sale or disposition of the Collateral shall be
paid to the respective Debtor or to any other party entitled thereto or shall
otherwise be paid over in a manner permitted by law after payment in full of all
Secured Obligations and the Enforcement Costs related to any such payment.
4.1.3 Uniform Commercial Code and Other Remedies. Upon the occurrence
of an Event of Default (and in addition to all of its rights, powers and
remedies under this Agreement), the Collateral Agent shall have all of the
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rights, powers and remedies of a secured party under the New York Uniform
Commercial Code, the Uniform Commercial Code in effect in any other applicable
State, and other applicable laws. Upon such occurrence and demand by the
Collateral Agent, each Debtor shall assemble the Collateral and make it
available to the Collateral Agent, at a place reasonably convenient for such
purpose as designated by the Collateral Agent. Upon an Actionable Default, the
Collateral Agent or its agents may enter upon each Debtor's premises to take
possession of the Collateral, to remove it, to render it unusable, or to sell or
otherwise dispose of it. Any written notice of the sale, disposition or other
intended action by the Collateral Agent with respect to the Collateral which is
sent by regular mail, postage prepaid, to the Debtors at the addresses set forth
for notices herein, or such other address of the Debtors which may from time to
time be shown on the Collateral Agent's records, at least 10 days prior to such
sale, disposition or other action, shall constitute reasonable notice to each
such Debtor.
4.1.4 Power of Attorney. Each Debtor hereby irrevocably designates and
appoints the Collateral Agent its true and lawful attorney either in the name of
the Collateral Agent or in the name of each respective Debtor, effective upon
the occurrence and during the existence of an Actionable Default, to ask for,
demand, xxx for, collect, compromise, compound, receive, receipt for and give
acquittance for any and all sums owing or which may become due upon any part of
the Collateral or under any insurance maintained in accordance with the Security
Documents 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 or under any insurance maintained in accordance with the Security
Documents, including, without limitation, power to endorse in the name of each
Debtor on any checks, drafts, notes or other instruments received in payment of
or on account of the Collateral or under any insurance maintained in accordance
with the Security Documents, or to sign each Debtor's name on any invoice or
xxxx of lading relating to the Collateral, on notices of assignment, on public
records, on verifications of Collateral and on notices to Account Debtors, or on
any proof of claim in bankruptcy proceeding against an Account Debtor and any
other obligor with respect to the Collateral, to send requests for verification
from Account Debtors, to notify the post office authorities to change the
address for delivery of each Debtor's mail to an address designated by the
Collateral Agent and to receive, open and dispose of all mail addressed to each
Debtor. Notwithstanding the foregoing, the Collateral Agent shall not be under
any duty to any Debtor to exercise any such authority or power or in any way be
responsible for the collection of the Collateral or under any insurance
maintained in accordance with the Security Documents. The foregoing power of
attorney, being coupled with an interest, is irrevocable until the Secured
Obligations have been fully satisfied and any commitments therefor terminated.
The Collateral Agent may file one or more financing statements disclosing its
Lien in any or all of the Collateral without any Debtor's signature appearing
thereon. Each Debtor also hereby grants to the Collateral Agent a power of
attorney to execute any such financing statement, or amendments and supplements
to financing statements, on behalf of such Debtor without notice thereof to such
Debtor, which power of attorney is coupled with an interest and is irrevocable
until the Secured Obligations have been fully satisfied and this Agreement
terminated.
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ARTICLE 5
MISCELLANEOUS
SECTION 5.1 Course of Dealing; Amendment. No course of dealing between
any Debtor and the Collateral Agent shall be effective to amend, modify or
change any provision of this Agreement, and this Agreement may not be amended,
modified, or changed in any respect except by an agreement in writing signed by
the Collateral Agent (at the direction of the requisite Secured Parties as
required by the Intercreditor Agreement) and each Debtor. The Collateral Agent
shall have the right at all times, subject to the rights of the Secured Parties
under the Intercreditor Agreement, to enforce the provisions of this Agreement
in strict accordance with the terms hereof and thereof, notwithstanding any
conduct or custom on the part of the Collateral Agent in refraining from so
doing at any time or times. The failure or delay of the Collateral Agent at any
time or times to enforce the rights under such provisions, strictly in
accordance with the same, shall not be construed as having created a custom in
any way or manner contrary to specific provisions of this Agreement or as having
in any way or manner modified or waived the same.
SECTION 5.2 Waiver, Cumulative Remedies. Subject to the rights of the
Secured Parties under the Intercreditor Agreement and the applicable Debtor
under the Security Documents and the Transaction Documents, the Collateral Agent
may, on behalf of the Secured Parties:
(a) at any time and from time to time, execute and deliver to the
Debtors a written instrument waiving, on such terms and conditions as the
Collateral Agent may specify in such written instrument, any of the requirements
of this Agreement or any Event of Default hereunder and its consequences,
provided, that any such waiver shall be for such period and subject and limited
to such conditions as shall be specified in any such instrument and to the
instance for which the waiver is given. In the case of any such waiver, each of
the Debtor and the Collateral Agent shall be restored to their former positions
prior to such Event of Default and shall have the same rights as they had
hereunder. The rights, powers and remedies provided in this Agreement are
cumulative, may be exercised concurrently or separately, may be exercised from
time to time and in such order as the Collateral Agent shall determine, and are
in addition to, and not exclusive of, rights, powers and remedies provided by
applicable Laws.
(b) proceed against any of the Collateral without proceeding against
the Debtors or other Persons obligated under any of the Secured Obligations;
(c) without reducing or impairing the Secured Obligations of the
Debtors and without notice, release or compromise with any guarantor or other
Person liable for all or any part of the Secured Obligations;
(d) without reducing or impairing the Secured Obligations of the
Debtors and without notice thereof: (i) fail to perfect the Lien in any or all
Collateral or to release any or all the Collateral or to accept substitute
Collateral, (ii) allow all or any of the Secured Obligations to arise after the
date of this Agreement, (iii) waive any provision of this Agreement, (iv)
exercise or fail to exercise rights of set-off or other rights, (v) accept
partial payments or extend from time to time the maturity of all or any part of
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the Secured Obligations, and (vi) take or fail to take any action under this
Agreement or against any one or more Persons obligated under the Secured
Obligations.
Each of the Debtors hereby waives and releases all claims and defenses against
the Collateral Agent and the Secured Parties and/or with respect to the payment
of or the enforcement of the Secured Obligations and the Collateral Agent's
rights in the Collateral on account of any of the foregoing, except as to the
Collateral Agent's and the Secured Parties' gross negligence or willful
misconduct.
SECTION 5.3 Notices. All notices, requests and demands to or upon the
parties to this Agreement shall be deemed to have been given or made when so
given or made in accordance with the Intercreditor Agreement.
SECTION 5.4 Management and Administration by Collateral Agent. The
Collateral Agent shall not have any duty to any of the Debtors to pay for
insurance, taxes, or other charges incurred in the custody, preservation, use or
operation of, or in connection with the management of, any Collateral on which a
Lien is granted in connection with this Agreement; provided, however, that the
Collateral Agent may (in its sole discretion) pay such expenses. All such
payments shall be part of the Secured Obligations and shall bear interest
payable on demand by the Company from the date of any demand therefor until paid
in full at the Default Rate.
SECTION 5.5 Waiver of Jury Trial; Consent to Jurisdiction. EACH OF THE
DEBTORS (A) AND THE COLLATERAL AGENT IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF THIS AGREEMENT TO THE EXTENT PERMITTED BY LAW, (B) SUBMITS TO THE
NONEXCLUSIVE PERSONAL JURISDICTION IN XXXXXX COUNTY, GEORGIA, OF THE COURTS
THEREOF AND THE UNITED STATES DISTRICT COURTS FOR THE NORTHERN DISTRICT OF
GEORGIA, FOR THE ENFORCEMENT OF THIS AGREEMENT, (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, AND
(D) AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN THE MANNER PRESCRIBED
IN THE INTERCREDITOR AGREEMENT FOR THE GIVING OF NOTICE TO THE COMPANY. NOTHING
HEREIN CONTAINED, HOWEVER, SHALL PREVENT THE COLLATERAL AGENT FROM BRINGING ANY
ACTION OR EXERCISING ANY RIGHTS AGAINST ANY COLLATERAL AND AGAINST ANY OF THE
DEBTORS PERSONALLY, AND AGAINST ANY ASSETS OF THE DEBTORS, WITHIN ANY OTHER
STATE OR JURISDICTION.
SECTION 5.6 Severability. In case one or more provisions contained in
this Agreement shall be invalid, illegal or unenforceable in any respect under
any Laws, the validity, legality and enforceability of the remaining provisions
contained herein shall remain effective and binding on the parties thereto and
shall not be affected or impaired thereby.
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SECTION 5.7 Assignment, Etc. The Collateral Agent shall have the right
to divulge to any actual or potential purchaser, assignee, transferee or
participant of the Collateral and/or the Secured Obligations, or any part
thereof, all information, reports, financial statements and documents obtained
in connection with this Agreement or otherwise. Notwithstanding anything
contained herein, any confidentiality restriction agreed to by any person shall
continue to be binding upon such person.
SECTION 5.8 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of each of the Debtors and the Collateral Agent and their
respective successors and assigns, except that the none of the Debtors shall
have the right to assign its rights or obligations hereunder or any interest
herein without the prior written consent of the Collateral Agent.
SECTION 5.9 APPLICABLE LAW. EACH OF THE DEBTORS ACKNOWLEDGES AND AGREES
THAT THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 5.10 Definitional Provisions. Unless otherwise defined herein,
as used in this Agreement and in any certificate, report or other document made
or delivered pursuant hereto, accounting terms not otherwise defined herein, and
accounting terms only partly defined herein, to the extent not defined, shall
have the respective meanings given to them under generally accepted United
States accounting principles consistently applied to the Debtors. Unless
otherwise defined herein, all terms used herein which are defined by the New
York Uniform Commercial Code shall have the same meanings as assigned to them by
the New York Uniform Commercial Code unless and to the extent varied by this
Agreement. The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and article, section,
subsection, schedule and exhibit references are references to articles, sections
or subsections of, or schedules or exhibits to, as the case may be, this
Agreement unless otherwise specified. The captions, headings and titles to this
Agreement and its sections, subsections and other parts are only for the
convenience of the parties and are not part of this Agreement. As used herein,
the singular number shall include the plural, the plural the singular and the
use of the masculine, feminine or neuter gender shall include all genders, as
the context may require. Reference to this Agreement or to any one or more of
the instruments, agreements or documents previously, simultaneously or hereafter
executed and delivered by any of the Debtors, any guarantor and/or any other
Person, singly or jointly with another Person or Persons, evidencing, securing,
guarantying or otherwise in connection with any of the Secured Obligations
and/or in connection with this Agreement shall mean the same as the foregoing
may from time to time be amended, restated, substituted, extended, renewed,
supplemented or otherwise modified.
SECTION 5.11 Continuing Enforcement of the Transaction Documents. If,
after receipt of any payment of all or any part of the Secured Obligations of
the Debtors to the Collateral Agent or any of the Secured Parties, the
Collateral Agent is or any such Secured Parties are compelled or agree, for
settlement purposes, to surrender such payment to any person or entity for any
reason, then this Agreement and the other Security Documents, and the applicable
Transaction Documents shall continue in full force and effect or be reinstated,
as the case may be. The provisions of this Section 5.11 shall survive the
termination of this Agreement, the other Security Documents and the Transaction
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Documents and shall be and remain effective notwithstanding the payment of the
Secured Obligations, the cancellation of the Security Agreement, any other
Security Documents or the Transaction Documents, the release of any security
interest, lien or encumbrance securing the Secured Obligations or any other
action which the Collateral Agent or any of the Secured Parties may have taken
in reliance upon its receipt of such payment.
SECTION 5.12 Additional Debtors. Section 5.21 of the Credit Agreement
provides that Significant Domestic Subsidiaries which are not Guarantors (as
defined in the Credit Agreement) must become Guarantors, by, among other things,
executing and delivering to the Collateral Agent a counterpart of this
Agreement. Any Significant Domestic Subsidiary which executes and delivers to
the Collateral Agent a counterpart of this Agreement shall be a Debtor for all
purposes hereunder.
[SIGNATURES COMMENCE ON THE NEXT PAGE]
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IN WITNESS WHEREOF, each of the Debtors has executed and delivered this
Agreement as of the day and year first written above.
"DEBTORS"
XXXXXXXX XXXXX, INC. (SEAL)
By:
---------------------------------------------
Name:
Title:
CURTAINS AND FABRICS, INC.
a New York corporation (SEAL)
By:
---------------------------------------------
Name:
Title:
GOLD XXXXX, INC. (SEAL)
a Delaware corporation
By:
---------------------------------------------
Name:
Title:
RASCHEL FASHION INTERKNITTING, LTD
a New York corporation (SEAL)
By:
---------------------------------------------
Name:
Title:
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST WRITTEN ABOVE:
WACHOVIA BANK, N.A., (SEAL)
as Collateral Agent for the Secured Parties
By:
---------------------------------------------
Name:
Title:
226
EXHIBIT A
I. CHIEF EXECUTIVE OFFICE/PRINCIPAL PLACE OF BUSINESS OF THE DEBTORS
-----------------------------------------------------------------
Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Gold Xxxxx, Inc.
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Raschel Fashion Interknitting, Ltd.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Curtains and Fabrics, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
227
II. PLACES OF BUSINESS AND COLLATERAL LOCATIONS
-------------------------------------------
XXXXXXXX XXXXX, INC.:
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC XXXXXXXX XXXXXXX PLANT
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC XXXXXXXX XXXXXXXXX PLANT
----------------------------------- ----------------------------- ----------------------------------------------
LUMBERTON, NC XXXXXXX LUMBERTON CIRCULAR KNIT PLANT
----------------------------------- ----------------------------- ----------------------------------------------
LOS ANGELES, CA LOS ANGELES APPAREL SALES OFFICE
----------------------------------- ----------------------------- ----------------------------------------------
NEW YORK, NY NEW YORK 000 0XX XXXXXX XX
----------------------------------- ----------------------------- ----------------------------------------------
SAN FRANCISCO, CA SAN FRANCISCO APPAREL SALES OFFICE
----------------------------------- ----------------------------- ----------------------------------------------
SKOKIE, IL XXXX COUNTY APPAREL SALES OFFICE
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC GUILFORD FRIENDSHIP - APPAREL WAREHOUSE
----------------------------------- ----------------------------- ----------------------------------------------
LUMBERTON, NC XXXXXXX APPAREL WAREHOUSE
----------------------------------- ----------------------------- ----------------------------------------------
HIGH POINT, NC GUILFORD APPAREL/HF HIGH POINT SHOWROOM
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC GUILFORD FRIENDSHIP
----------------------------------- ----------------------------- ----------------------------------------------
WALLACE, NC XXXXXX XXXXXXX - WEAVING
----------------------------------- ----------------------------- ----------------------------------------------
KENANSVILLE, NC DUPLIN GUILFORD EAST AUTOMOTIVE PLANT
----------------------------------- ----------------------------- ----------------------------------------------
KENANSVILLE, NC DUPLIN AUTO WAREHOUSE
----------------------------------- ----------------------------- ----------------------------------------------
PLANO, TX COLLIN HOME FASHIONS SALES OFFICE
----------------------------------- ----------------------------- ----------------------------------------------
FUQUAY-VARINA, NC WAKE FUQUAY-VARINA FIBER PLANT
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC XXXXXXXX XXXXXXXX WARPING PLANT
----------------------------------- ----------------------------- ----------------------------------------------
ANGIER, NC HARNETT FIBERS WAREHOUSE
----------------------------------- ----------------------------- ----------------------------------------------
WASHINGTON, DC DISTRICT OF COLUMBIA WASHINGTON LIASON
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC XXXXXXXX XXXXX BUILDING
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC GUILFORD HR & PURCHASING WENDOVER
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC GUILFORD HR TRAINING FACILITY WENDOVER
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC GUILFORD IFD BUILDING
----------------------------------- ----------------------------- ----------------------------------------------
RASCHEL FASHION INTERKNITTING, LTD.:
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
COBLESKILL, NY SCHOHARIE NORTH PLANT - COBLESKILL
----------------------------------- ----------------------------- ----------------------------------------------
COBLESKILL, NY SCHOHARIE SOUTH PLANT - COBLESKILL
----------------------------------- ----------------------------- ----------------------------------------------
COBLESKILL, NY SCHOHARIE WAREHOUSE - COBLESKILL
----------------------------------- ----------------------------- ----------------------------------------------
XXXXX CAVE, NY SCHOHARIE GFD NORTH (BRAMANVILLE) WAREHOUSE
----------------------------------- ----------------------------- ----------------------------------------------
GOLD XXXXX, INC.:
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
Pine Grove, PA Schuylkill Pine Grove Knitting, Dyeing
----------------------------------- ----------------------------- ----------------------------------------------
CURTAINS AND FABRICS, INC.
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
Herkimer, NY Herkimer Herkimer Bedding Plant
----------------------------------- ----------------------------- ----------------------------------------------
Herkimer, NY Herkimer Herkimer Curtain Plant
----------------------------------- ----------------------------- ----------------------------------------------
228
----------------------------------- ----------------------------- ----------------------------------------------
Herkimer, NY Herkimer Herkimer Maint/Waste Plants
----------------------------------- ----------------------------- ----------------------------------------------
Amherst, NY Erie Amherst Outlet Store
----------------------------------- ----------------------------- ----------------------------------------------
Burlington, NC Alamance Burlington Outlet Store
----------------------------------- ----------------------------- ----------------------------------------------
Herkimer, NY Herkimer Herkimer Outlet Store
----------------------------------- ----------------------------- ----------------------------------------------
Latham, NY Albany Latham Outlet Store
----------------------------------- ----------------------------- ----------------------------------------------
III. FEDERAL IDENTIFICATION NUMBERS
------------------------------
XXXXXXXX XXXXX, INC.
Tax I.D. #: 00-0000000
CURTAINS AND FABRICS, INC.
Tax I.D. #00-0000000
GOLD XXXXX, INC.
Tax I.D. #: 00-0000000
RASCHEL FASHION INTERKNITTING, LTD.
Tax I.D. #: 00-0000000
IV. OTHER BUSINESS NAMES
--------------------
On May 31, 1995, Cobleskill Novelty Fibers, Inc. merged with and into
Raschel Fashion Interknitting, Ltd.
Curtains and Fabrics, Inc. has used the names Guilford Home Fashions
and Hofmman Laces.
229
REVISED JUNE 5, 2000
EXHIBIT B
---------
PERMITTED LIENS(5)
(Capitalized terms used herein without definition shall have the meanings
ascribed thereto in the Security Agreement to which this Exhibit is attached.)
XXXXXXXX XXXXX, INC.:
GOLD XXXXX, INC:
RASCHEL FASHION INTERKNITTING, INC.:
CURTAINS AND FABRICS, INC.:
----------
5 Exhibit B shall be modified after all lien search reports have been received
by the Collateral Agent to include additional permitted Liens reasonably
acceptable to the Collateral Agent based on such additional lien search reports.
230
EXHIBIT P
---------
PATENT COLLATERAL ASSIGNMENT
IT IS HEREBY AGREED as of May 26, 2000 among XXXXXXXX XXXXX, INC., a
Delaware corporation (the "Company"), GFD FABRICS, INC., a North Carolina
corporation, both with their executive offices at 0000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 (collectively, the "Assignors" and each
individually, an "Assignor", which term shall refer to any Significant Domestic
Subsidiary (as defined in the Credit Agreement described below) which becomes an
Assignor pursuant to Paragraph 12 hereof and Section 5.21 of the Credit
Agreement) and WACHOVIA BANK, N.A., a national banking association (in its
individual capacity, "Wachovia") organized under the laws of the United States
of America, as collateral agent (in such capacity, together with its successors
and assigns, "Collateral Agent") for itself, and for (i) The Prudential
Insurance Company of America, The Variable Annuity Life Insurance Company,
American General Annuity Insurance Company, Massachusetts Mutual Life Insurance
Company and C.M. Life Insurance Company (collectively, together with any other
holders of Senior Notes, as defined in and from time to time pursuant to the
Note Purchase Agreements, as defined in the Intercreditor Agreement described
below, the "Senior Note Holders") and (ii) Wachovia, First Union National Bank,
Bank One, N.A. and Branch Banking and Trust Company (collectively, together with
any other Banks parties from time to time to the Credit Agreement (the "Credit
Agreement") dated as of even date herewith among the Company, Wachovia, as
Administrative Agent, First Union National Bank, as Syndication Agent, Bank One,
N.A., as Documentation Agent, and the Banks listed therein, the "Banks"; the
Senior Note Holders and the Banks being collectively referred to, together with
any Cash Management Services Provider (as defined in the Intercreditor
Agreement), with respect to Cash Management Services Obligations (as defined in
the Intercreditor Agreement), and any Bank providing hedge arrangements giving
rise to Hedge Obligations (as defined in the Intercreditor Agreement), as
"Secured Parties"), in connection with that certain Intercreditor Agreement by
and among the Company, the Collateral Agent and the Secured Parties dated as of
May 26, 2000 (as amended or otherwise modified from time to time, the
"Intercreditor Agreement") as follows:
1. As collateral security for, and to secure the prompt payment in full
of the Secured Obligations (as defined in the Intercreditor Agreement), each of
the Assignors hereby grants, assigns, and conveys to the Collateral Agent, for
the ratable benefit of the Secured Parties, the entire right, title, and
interest in and to the respective patent applications and patents listed in
Exhibit "A" attached hereto, including, without limitation, all proceeds thereof
(such as, by way of example, license royalties and proceeds of infringement
suits), the right to xxx for past, present, and future infringements, all rights
corresponding thereto throughout the world, and all reissues, divisions,
continuations, renewals, extensions, and continuations-in-part thereof
(collectively, the "Patents").
2. Each of the Assignors, jointly and severally, covenants and warrants
that:
(a) The Patents (other than patent applications) are
subsisting and have not been adjudged invalid or unenforceable, in
whole or in part;
231
(b) Each of the Patents (other than patent applications) is
valid and enforceable;
(c) Except as set forth on Schedule 2(c), each of the
Assignors is the sole and exclusive owner of the entire and
unencumbered right, title, and interest in and to each of the
respective Patents as set forth on Exhibit "A", free and clear of any
liens, charges, and encumbrances, including, without limitation,
licenses, shop rights, and covenants by any Assignor not to xxx third
persons; and
(d) Each Assignor has the unqualified right to enter into this
Agreement and perform its terms.
3. Each Assignor agrees that, until all of the Secured Obligations
shall have been satisfied in full, it will not enter into any agreement (for
example, a license agreement) which is inconsistent with such Assignor's
obligations under this Agreement without the Collateral Agent's prior written
consent, except as permitted under the Credit Agreement.
4. If, before the Secured Obligations shall have been satisfied in
full, any Assignor shall obtain rights to any new patentable inventions, or
become entitled to the benefit of any patent application or patent for any
reissue, division, continuation, renewal, extension, or continuation-in-part of
any patent or any improvement of any Patent, the provisions of Paragraph 1 shall
automatically apply thereto and such Assignor shall give to the Collateral Agent
prompt notice thereof in writing.
5. Each Assignor authorizes the Collateral Agent to modify this
Agreement by amending Exhibit "A" to include any future patents and patent
applications which are Patents under Paragraph 4 or Paragraph 12 hereof.
6. Unless and until there shall have occurred and be continuing an
Event of Default (as defined in the Intercreditor Agreement), the Collateral
Agent hereby grants to each Assignor the exclusive, nontransferable right and
license to make, have made, use, and sell the inventions disclosed and claimed
in the Patents and to collect and use the proceeds thereof and exercise all
rights assigned hereby for such Assignor's and any Subsidiary's (as defined in
the Credit Agreement) own benefit and account and for none other. Except as
permitted under the Credit Agreement, each Assignor agrees not to sell or assign
its interest in, or grant any sublicense under, the license granted to such
Assignor in this Paragraph 6, without the prior written consent of the
Collateral Agent.
7. If any Event of Default shall have occurred, each Assignor's license
under the Patents as set forth in Paragraph 6 shall terminate upon written
notice from the Collateral Agent, and the Collateral Agent shall have, in
addition to all other rights and remedies given it by this Agreement, those
allowed by law and the rights and remedies of a secured party under the Uniform
Commercial Code as enacted in any jurisdiction in which the Patents may be
located and, without limiting the generality of the foregoing, the Collateral
Agent may immediately, without demand of performance and without other notice
(except as set forth next below) or demand whatsoever to Assignors, all of which
are hereby expressly waived, and without advertisement, sell at public or
private sale or otherwise realize upon, in the State of Georgia, or elsewhere,
232
the whole or from time to time any part of the Patents, or interest which any of
the Assignors may have therein, and after deducting from the proceeds of sale or
other disposition of the Patents all expenses (including all reasonable expenses
for broker's fees and legal services), shall apply the residue of such proceeds
toward the payment of the Secured Obligations pursuant to the Intercreditor
Agreement. Any remainder of the proceeds after payment in full of the Secured
Obligations pursuant to the Intercreditor Agreement shall be paid over to the
Company. Notice of any sale or other disposition of the Patents shall be given
to the applicable Assignor at least ten (10) days before the time of any
intended public or private sale or other disposition of the Patents is to be
made, which each Assignor hereby agrees shall be reasonable notice of such sale
or other disposition. At any such sale or other disposition, the Collateral
Agent may, to the extent permissible under applicable law, purchase the whole or
any part of the Patents sold, free from any right of redemption on the part of
the Assignors, which right is hereby waived and released.
8. At such time as the Company shall completely satisfy all of the
Secured Obligations in accordance with the Intercreditor Agreement, the
Collateral Agent shall execute and deliver to the applicable Assignor all deeds,
assignments, and other instruments as may be necessary or proper to revest in
such Assignor full title to the applicable Patents, subject to any disposition
thereof which may have been made by the Collateral Agent pursuant hereto.
9. Any and all fees, costs, and expenses, of whatever kind or nature,
including the reasonable attorneys' fees and legal expenses, incurred by the
Collateral Agent in connection with the preparation of this Agreement and all
other documents relating hereto and the consummation of this transaction, the
filing or recording of any documents (including all taxes in connection
therewith) in public offices, the payment or discharge of any taxes, counsel
fees, maintenance fees, encumbrances, or otherwise protecting, maintaining,
preserving the Patents, or in defending or prosecuting any actions or
proceedings arising out of or related to the Patents after the license granted
pursuant to Paragraph 6 hereof is terminated pursuant to Paragraph 7, shall be
borne and paid by the Company on demand by the Collateral Agent and until so
paid shall be added to the principal amount of the Secured Obligations and shall
bear interest at the Default Rate (as defined in the Credit Agreement).
10. Each Assignor shall have the duty, through counsel acceptable to
the Collateral Agent in its reasonable discretion, to prosecute diligently any
applicable patent application of the Patents pending as of the date of this
Agreement or thereafter until the Secured Obligations shall have been paid in
full, to make application on the respective Assignor's unpatented but patentable
inventions and to preserve and maintain all applicable rights in patent
applications and patents of the Patents in accordance with customary business
practice and industry standards, in each case, to the extent reasonably deemed
prudent by the respective Assignor. Any expenses incurred in connection with
such an application shall be borne by the respective Assignor.
11. After the license granted pursuant to Paragraph 6 hereof is
terminated pursuant to Paragraph 7, the Collateral Agent shall have the rights
but shall in no way be obligated to bring suit in its own name to enforce the
Patents and any license hereunder, in which event the relevant Assignor shall at
the request of the Collateral Agent do any and all lawful acts and execute any
and all proper documents required by the Collateral Agent in aid of such
enforcement, and the Company shall promptly, upon demand, reimburse and
233
indemnify the Collateral Agent for all reasonable costs and expenses incurred by
the Collateral Agent in the exercise of its rights under this Paragraph 11.
12. Section 5.21 of the Credit Agreement provides that Significant
Domestic Subsidiaries which are not Guarantors (as defined in the Credit
Agreement) must become Guarantors by, among other things, executing and
delivering to the Collateral Agent a counterpart of this Agreement; provided,
however, that any Guarantor that does not own Patents shall not be required to
execute a counterpart to this Agreement. Any Guarantor which is not a party to
this Agreement that obtains Patents subsequent to the date hereof shall likewise
be required to execute and deliver to the Collateral Agent a counterpart of this
Agreement. Any Guarantor which executes and delivers to the Collateral Agent a
counterpart of this Agreement shall be an Assignor for all purposes hereunder.
13. No course of dealing between any Assignor and the Collateral Agent,
nor any failure to exercise, nor any delay in exercising, on the part of the
Collateral Agent, any right, power, or privilege hereunder or under the Credit
Agreement or the Intercreditor Agreement shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power, or privilege hereunder
or thereunder preclude any other or future exercise thereof or the exercise of
any other right, power, or privilege.
14. All of the Collateral Agent's rights and remedies with respect to
the Patents, whether established hereby or by the Credit Agreement or the
Intercreditor Agreement, or by any other agreements or by law shall be
cumulative and may be exercised singularly or concurrently.
15. The provisions of this Agreement are severable, and if any clause
or provision shall be held invalid and unenforceable, in whole or in part, in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part hereof, in such jurisdiction and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
16. This Agreement is subject to modification only by a writing signed
by the parties, except as provided in Paragraph 5.
17. Upon indefeasible payment in full of all of the Bank Obligations
(as defined in the Intercreditor Agreement), and termination of all Commitments
under the Credit Agreement, this Agreement shall terminate. Upon termination of
this Agreement in accordance with its terms the Collateral Agent agrees to take
such actions as the Company may reasonably request, and at the sole cost and
expense of the Company, to evidence the termination of this Agreement,
including, without limitation, the filing of any releases or any termination
statements under the Uniform Commercial Code.
18. The benefits and burdens of this Agreement shall inure to the
benefit of and be binding upon the respective successors and the permitted
assigns of the parties, except that none of the Assignors shall be permitted to
assign this Agreement or any interest herein or in the Patents, or any part
thereof.
234
19. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
20. Except as otherwise provided herein, any notice required hereunder
shall be given in accordance with the applicable terms of the Credit Agreement.
[Signatures Contained on the Next Page]
235
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement and have caused their corporate seals to be affixed hereto on the date
first above written.
WACHOVIA BANK, N.A.,
as Collateral Agent
By:
--------------------------------
Title:
ATTEST: XXXXXXXX XXXXX, INC.
By: By:
---------------------------------- --------------------------------
Secretary Title:
(Corporate Seal)
ATTEST: GFD FABRICS, INC.
By: By:
---------------------------------- --------------------------------
Secretary Title:
(Corporate Seal)
236
STATE OF )
---------------------------
)
COUNTY OF )
--------------------------
BEFORE ME, the undersigned Notary Public, on this day personally
appeared _________________________________ of Xxxxxxxx Xxxxx, Inc., a Delaware
corporation, and _________________________________ of GFD Fabrics, Inc., a North
Carolina corporation, proved to me to be the persons and officers whose names
are subscribed to the foregoing instrument and acknowledged to me that the same
was the act of said corporations, and that each executed the same as the act of
said corporation for the purpose and consideration therein expressed and in the
capacity therein stated:
GIVEN UNDER MY HAND AND OFFICIAL SEAL this ____ day of ____________,
2000.
----------------------------------
Notary Public in and for the State
of _______________
(SEAL)
My Commission Expires:
---------------------------
237
EXHIBIT A
---------
PATENTS
-------
XXXXXXXX XXXXX, INC.
--------------------
PENDING PATENT APPLICATIONS
---------------------------- ----------------- ------------------------- ---------------------------------------------
DATE FILED APPL. NO. INVENTOR(S) TITLE
---------------------------- ----------------- ------------------------- ---------------------------------------------
---------------------------- ----------------- ------------------------- ---------------------------------------------
---------------------------- ----------------- ------------------------- ---------------------------------------------
---------------------------- ----------------- ------------------------- ---------------------------------------------
---------------------------- ----------------- ------------------------- ---------------------------------------------
---------------------------- ----------------- ------------------------- ---------------------------------------------
---------------------------- ----------------- ------------------------- ---------------------------------------------
---------------------------- ----------------- ------------------------- ---------------------------------------------
---------------------------- ----------------- ------------------------- ---------------------------------------------
---------------------------- ----------------- ------------------------- ---------------------------------------------
ISSUED PATENTS
---------------------------- ----------------- ------------------------- ---------------------------------------------
ISSUE DATE PATENT NO. INVENTOR(S) TITLE
---------------------------- ----------------- ------------------------- ---------------------------------------------
03/24/1992 Canadian Xxxxxxxx NAPPED WARP-KNITTED FABRIC AND METHOD OF
1,297,685 PRODUCING SAME
---------------------------- ----------------- ------------------------- ---------------------------------------------
11/05/1996 European Xxxxx TEXTILE FABRIC WITH OPPOSED ABSORBENT AND
0429802 NON-ABSORBENT LAYERS AND METHOD OF
FABRICATING SAME (Corresponds to U.S.
Patent No. 5,065,600)
---------------------------- ----------------- ------------------------- ---------------------------------------------
05/15/1996 European Xxxxx & Xxxxxxxx LOOP-TYPE TEXTILE FASTENER FABRIC AND
0517275 METHOD OF PRODUCING SAME (Corresponds to
U.S. Patent No. 5,214,942)
---------------------------- ----------------- ------------------------- ---------------------------------------------
09/23/1997 5,669,247 XxXxxxxxx, Xxxxx & UNDERWIRE BRASSIERE, WARP KNITTED TEXTILE
Xxxxxxx FABRIC FOR USE IN FABRICATING SAME, AND
METHOD OF WARP KNITTING SUCH FABRIC
---------------------------- ----------------- ------------------------- ---------------------------------------------
05/05/1998 5,746,046 McCartney, Xxxxx & Xxxxx METHOD FOR FORMING COMMINGLED COMPOSITE YARN
---------------------------- ----------------- ------------------------- ---------------------------------------------
12/16/1998 European Patent Xxxxxxxx & Xxxxxxxx WARP KNITTED TEXTILE SPACER FABRIC, METHOD
No. OF PRODUCING SAME, AND PRODUCT PRODUCED
0692563 THEREFROM
---------------------------- ----------------- ------------------------- ---------------------------------------------
01/05/1999 5,855,124 Xxxxxxx & Azuero MOLDABLE WARP KNITTED FABRIC AND METHOD OF
FORMING A SEAMLESS MOLDED FABRIC PORTION
THEREFROM
---------------------------- ----------------- ------------------------- ---------------------------------------------
238
---------------------------- ----------------- ------------------------- ---------------------------------------------
12/07/1999 5,996,378 McCartney KNITTED TEXTILE FABRIC WITH INTEGRATED
FLUID-CONTAINING OR CONVEYING TUBULAR
SEGMENTS
---------------------------- ----------------- ------------------------- ---------------------------------------------
239
GFD FABRICS, INC.
-----------------
PENDING PATENT APPLICATIONS
NONE
ISSUED PATENTS
---------------------------- ----------------- ------------------------- ---------------------------------------------
ISSUE DATE PATENT NO. INVENTOR(S) TITLE
---------------------------- ----------------- ------------------------- ---------------------------------------------
09/30/1986 4,614,095 Porat METHOD AND APPARATUS FOR OPERATING WARP
KNITTING MACHINES
---------------------------- ----------------- ------------------------- ---------------------------------------------
03/31/1987 4,653,293 Porat MECHANISM FOR EFFECTING MOVEMENT
---------------------------- ----------------- ------------------------- ---------------------------------------------
10/06/1987 4,698,276 Xxxxx DIFFERENTIAL DENSITY FABRIC
---------------------------- ----------------- ------------------------- ---------------------------------------------
12/15/1987 4,712,281 Xxxxxxxx NAPPED WARP-KNITTED FABRIC AND METHOD OF
PRODUCING SAME
---------------------------- ----------------- ------------------------- ---------------------------------------------
11/21/1989 4,881,383 Xxxxxxxx, Xxxxxx & WARP KNITTED FABRIC WITH SATIN-LIKE BACK
Xxxxxxxx AND BRUSHABLE FACE AND METHOD OF KNITTING
SAME
---------------------------- ----------------- ------------------------- ---------------------------------------------
11/13/1990 4,969,244 Moghaddassi & Xxxxxxx WARP BEAM DEPLETION MONITORING APPARATUS
AND METHOD
---------------------------- ----------------- ------------------------- ---------------------------------------------
06/25/1991 5,025,644 Xxxxxxx & Moghaddassi SUEDING MEANS IN A TEXTILE FABRIC-PRODUCING
MACHINE
---------------------------- ----------------- ------------------------- ---------------------------------------------
11/19/1991 5,065,600 Xxxxx TEXTILE FABRIC WITH OPPOSED ABSORBENT AND
NON-ABSORBENT LAYERS AND METHOD OF
FABRICATING SAME
---------------------------- ----------------- ------------------------- ---------------------------------------------
02/04/1992 5,084,948 Xxxxxxx & Moghaddassi TEXTILE NAPPING MACHINE
---------------------------- ----------------- ------------------------- ---------------------------------------------
04/27/1993 5,205,140 Xxxxxxx & Moghaddassi SUEDING MEANS IN A TEXTILE FABRIC-PRODUCING
MACHINE
---------------------------- ----------------- ------------------------- ---------------------------------------------
06/01/1993 5,214,942 Xxxxx & Xxxxxxxx LOOP-TYPE TEXTILE FASTENER FABRIC AND
METHOD OF PRODUCING SAME
---------------------------- ----------------- ------------------------- ---------------------------------------------
240
---------------------------- ----------------- ------------------------- ---------------------------------------------
ISSUE DATE PATENT NO. INVENTOR(S) TITLE
---------------------------- ----------------- ------------------------- ---------------------------------------------
12/07/1993 5,267,453 Xxxxx & Xxxxxxxx LOOP-TYPE TEXTILE FASTENER FABRIC AND
METHOD OF PRODUCING SAME (CIP of now Issued
Patent No. 5,214942)
---------------------------- ----------------- ------------------------- ---------------------------------------------
08/02/1994 5,333,364 Enfield, Xxxxxx & Xxxxx METHOD FOR PRODUCING RANDOM YARN DENIER
VARIATIONS ON DRAW WARPING MACHINES
---------------------------- ----------------- ------------------------- ---------------------------------------------
01/10/1995 5,379,497 Xxxxxxx, McCartney & APPARATUS FOR INSPECTING SETTINGS ON A
Moghaddassi TEXTILE FABRIC SHEARING MACHINE
---------------------------- ----------------- ------------------------- ---------------------------------------------
01/10/1995 5,379,498 Xxxxxxx & Moghaddassi METHOD AND APPARATUS FOR CONTROLLING
SHEARING OF A PILE FABRIC
---------------------------- ----------------- ------------------------- ---------------------------------------------
01/31/1995 5,385,036 Xxxxxxxx & Xxxxxxxx WARP KNITTED TEXTILE SPACER FABRIC, METHOD
OF PRODUCING SAME, AND PRODUCT PRODUCED
THEREFROM
---------------------------- ----------------- ------------------------- ---------------------------------------------
04/18/1995 5,407,722 Peake, Spillane, LOOP-TYPE TEXTILE FASTENER FABRIC, METHOD
McCartney & Xxxxxxx OF PRODUCING SAME AND PROCESS OF TREATING
SAME
---------------------------- ----------------- ------------------------- ---------------------------------------------
05/16/1995 5,414,912 Xxxxxxx, Moghadassi & SHEAR ROLLER LUBRICATING APPARATUS
Vishnepolsky
---------------------------- ----------------- ------------------------- ---------------------------------------------
08/22/1995 5,442,842 Nielsen, McCartney, APPARATUS FOR GUIDING LONGITUDINAL TRAVEL
Xxxxxxxx & Moghaddassi OF A TUBULAR FABRIC
---------------------------- ----------------- ------------------------- ---------------------------------------------
09/12/1995 5,449,530 Xxxxx & Xxxxxxxx METHOD OF PRODUCING LOOP-TYPE TEXTILE
FASTERNER FABRIC AND PROCESS OF TREATING
SAME (Division of Serial NO. 08/138,335)
---------------------------- ----------------- ------------------------- ---------------------------------------------
10/31/1995 5,461,884 McCartney & Xxxxxxx WARP-KNITTED TEXTILE FABRIC SHOE LINER AND
METHOD OF PRODUCING SAME
---------------------------- ----------------- ------------------------- ---------------------------------------------
11/28/1995 5,470,030 Nielsen, Moghaddassi, FABRIC TAKE-UP FRAME FOR A TEXTILE FABRIC
Vishnepolsky & Xxxxx PRODUCING MACHINE
---------------------------- ----------------- ------------------------- ---------------------------------------------
241
---------------------------- ----------------- ------------------------- ---------------------------------------------
ISSUE DATE PATENT NO. INVENTOR(S) TITLE
---------------------------- ----------------- ------------------------- ---------------------------------------------
02/27/1996 5,494,205 Xxxxxxx, Moghaddassi & APPARATUS FOR FESTOONING A TRAVELING LENGTH
Xxxxxx OF WEB-LIKE MATERIAL
---------------------------- ----------------- ------------------------- ---------------------------------------------
03/19/1996 5,499,433 Moghaddassi & Xxxxxxx APPARATUS FOR SURFACE TREATMENT OF PILE AND
PLUSH FABRIC
---------------------------- ----------------- ------------------------- ---------------------------------------------
05/07/1996 5,513,503 Xxxx & Hessbaus STRAND GUIDING DEVICE FOR CIRCULAR KNITTING
MACHINES
---------------------------- ----------------- ------------------------- ---------------------------------------------
05/28/1996 5,520,027 McCartney, Xxxxxxx & APPARATUS FOR WET PROCESSING OF TEXTILE
Moghaddassi FABRIC
---------------------------- ----------------- ------------------------- ---------------------------------------------
08/06/1996 5,542,269 Xxxxxxxx WARP KNITTED FABRIC WITH RIBBED SATIN-LIKE
BACK
---------------------------- ----------------- ------------------------- ---------------------------------------------
10/01/1996 5,560,227 Depoe & Xxxxxxx WARP-KNITTED TEXTILE SHOE LINER HAVING
SPECIAL THICKNESS FROM THREE BAR
CONSTRUCTION
---------------------------- ----------------- ------------------------- ---------------------------------------------
09/24/1996 5,557,950 Xxxxxxxx, McCartney & WARP KNITTED PLUSH FABRIC RESISTANT TO PILE
Casper PULL-THROUGH
---------------------------- ----------------- ------------------------- ---------------------------------------------
11/19/1996 5,575,162 Xxxx & Xxxxxxxx APPARATUS FOR CONTROLLING TWIST IN A
KNITTED FABRIC
---------------------------- ----------------- ------------------------- ---------------------------------------------
04/15/1997 5,619,869 Xxxx WARP-KNITTED TEXTILE FABRIC WITH PATTERN OF
PLEATED FABRIC SECTION
---------------------------- ----------------- ------------------------- ---------------------------------------------
02/02/1999 5,865,045 Xxxxxx and Xxxxxxx KNIT WEAVE TARPAULIN CONSTRUCTION
---------------------------- ----------------- ------------------------- ---------------------------------------------
11/09/1999 5,979,029 McCartney, Nielsen, METHOD AND APPARATUS FOR REMOVING CREASES
Xxxxxxxx & Moghaddassi FROM TUBULAR FABRIC
---------------------------- ----------------- ------------------------- ---------------------------------------------
242
SCHEDULE 2(C)
Licenses and Covenants Not to Xxx
---------------------------------
1.
2.
3.
4.
5.
243
EXHIBIT Q
---------
HAZARDOUS MATERIALS INDEMNITY AGREEMENT
---------------------------------------
(to be modified for compliance with state law)
1. The undersigned XXXXXXXX XXXXX, INC., a Delaware corporation
("Obligor") to induce WACHOVIA BANK, NA. (together with its successors
and assigns, "Collateral Agent"), as collateral agent for itself and
Lenders (as defined in the Instrument, which term is hereinafter
defined) (i) enter into that certain Credit Agreement by and among
Obligor, First Union National Bank, as Syndications Agent, Bank One,
N.A., as Documentation Agent, and the other Banks (as defined in the
Instrument), and Wachovia Bank, N.A., as Administrative Agent, dated
May 26, 2000 (the "Credit Agreement"), and (ii) to accept the
Instrument (as hereinafter defined) as collateral for the Secured
Obligations (as defined in the Instrument), and with knowledge that
Collateral Agent and Lenders intend to rely upon the certifications and
undertakings set forth herein, agrees to indemnify Collateral Agent and
Lenders and hold Collateral Agent and Lenders harmless from and against
any and all loss, liability, damage and expense, including reasonable
attorneys' fees and costs, suffered or incurred by Collateral Agent or
Lenders, whether as holder of the Notes (as defined in the Instrument)
secured by the Instrument encumbering the land (the "Premises")
described on Exhibit "A" hereto, as mortgagee in possession or as
successor-in-interest to Obligor by foreclosure deed or deed in lieu of
foreclosure, in connection with or arising out of Hazardous Materials
(as defined in the Credit Agreement) upon the Premises, including any
loss of value of the Premises as a result of the foregoing. So long as
Obligor is the owner of the Premises, Obligor shall have the right to
participate with Collateral Agent in any settlement or other
negotiations with respect to any Indemnified Claim (as hereinafter
defined), but in no event shall Obligor enter into any agreement
related to such settlement or negotiations that may affect Collateral
Agent's and/or any Lender's interests without the consent of Collateral
Agent, which consent shall not be unreasonably withheld. In the event
Obligor no longer owns the Premises, Obligor shall have the right to
participate with Collateral Agent in any settlement or other
negotiations with respect to any Indemnified Claim, so long as Obligor
admits such Indemnified Clam is subject to this Agreement and
demonstrates, to the reasonable satisfaction of Collateral Agent, that
Obligor will honor its obligations under this Agreement and has the
financial ability to do so; provided, however, that in no event shall
Obligor enter into any agreement related to such settlement or
negotiations that may affect Collateral Agent's and/or any Lender's
interests without the consent of Collateral Agent and in the event
Obligor and Collateral Agent disagree as to the resolution of any
settlement or other negotiations, Collateral Agent shall control such
resolution.
2. It is understood and agreed that the foregoing undertaking to indemnify
and hold harmless Collateral Agent and Lenders shall arise (a) upon the
assertion against Collateral Agent and/or any Lender of any claim
relating to the presence of Hazardous Materials upon the Premises
(unless Obligor proves that such materials were introduced onto the
244
Premises after acquisition of title by Collateral Agent and/or
Lenders), or (b) if the claim arises because Obligor has failed to
comply with any law applicable to Hazardous Materials ((a) and (b),
collectively, the "Indemnified Claims"), and shall continue in full
force and effect as long as Collateral Agent or any Lender retains an
estate or interest in the Premises pursuant to the Instrument or holds
any indebtedness secured by a purchase money mortgage, deed to secure
debt or deed of trust given by a purchaser at foreclosure or trustee's
sale or from Lenders, or pursuant to a foreclosure or acceptance of a
deed in lieu or under threat of foreclosure in regard to any thereof or
so long as any Lender shall have liability by reason of having held
such estate or interest in the Premises, and such undertaking shall in
no event be limited, terminated or extinguished by, or merged into, the
exercise of any of Lenders' remedies under the Loans (as defined in the
Credit Agreement) or any of the Loan Documents (as defined in the
Credit Agreement), or otherwise. Except as may be otherwise expressly
agreed in writing, the liability of any party under this Agreement
shall in no way be limited or impaired by any amendment or modification
of any of the Loan Documents. In addition, the liability of any party
under this Agreement shall in no way be limited or impaired by (i) any
extensions of time for performance required by any of the Loan
Documents, (ii) any sale, assignment or foreclosure of any Loan
Document or any sale or transfer of all or any part of the Premises,
(iii) any exculpatory provision in any of the Loan Documents limiting
Lenders' recourse to property encumbered by the Loan Documents or to
any other security, or limiting Lenders' rights to a deficiency
judgment against Obligor, except as otherwise expressly provided in the
Loan Documents, (iv) the release of Obligor or any other person from
performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents by operation of law,
Collateral Agent's or Lenders' voluntary act, or otherwise, (v) the
release or substitution in whole or in part of any security for the
Notes, (vi) Collateral Agent's or Lenders' failure to record or file
any Loan Document (or Lenders' improper recording or filing of any
thereof) or Collateral Agent's or Lenders' failure otherwise to
perfect, protect, secure or insure any security interest or lien given
as security for the Loans; and, in any such case, whether with or
without notice to Obligor and with or without consideration, (vii) any
limitation of liability language in any Loan Documents, unless such
limitation of liability language expressly limits liability hereunder
or with respect hereto, or (viii) repayment of the Loans.
3. No provision of this Agreement may be changed, waived, discharged or
terminated verbally or by any other means except by an instrument in
writing signed by the party against whom enforcement of the change,
waiver, discharge or termination is sought.
4. Except as herein provided, this Agreement shall be binding upon Obligor
and Obligor's successors and assigns and shall inure to the benefit of
Collateral Agent and Lenders and Collateral Agent's or Lenders'
successors and assigns owning the Loan Documents or any interest
therein. The indemnity agreement of Obligor hereunder shall be binding
on all successors in interest of Obligor and on each and every
transferee and purchaser of the Premises or any part thereof or
interest therein.
245
5. This Agreement and the rights and obligations of the parties hereunder
shall in all respects be governed by, and construed and enforced in
accordance with, the laws of the State of North Carolina.
6. The capitalized terms used in this Agreement shall, unless the context
otherwise requires, have the same meanings as terms defined in the Deed
of Trust and Security Agreement (the "Instrument") of even date
herewith, recorded or intended to be recorded in the Office of the
______________________ of ___________________ County, North Carolina.
7. Any notices required to be given hereunder shall be given in the manner
set forth for notices in the Instrument.
IN WITNESS WHEREOF, Obligor has executed this Agreement under seal as
of the ____ day of _____________, 2000.
OBLIGOR:
XXXXXXXX XXXXX, INC., a Delaware corporation
By:
--------------------------------------------
Printed Name:
----------------------------------
Printed Title:
---------------------------------
Attest:
----------------------------------------
Printed Name:
----------------------------------
Printed Title:
---------------------------------
[CORPORATE SEAL]
246
EXHIBIT "A"
-----------
Legal Description
[TO FOLLOW]
247
Schedule 4.08
-------------
SUBSIDIARIES WHICH ARE SIGNIFICANT DOMESTIC SUBSIDIARIES
--------------------------------------------------------
Name Jurisdiction of Incorporation
---- -----------------------------
Gold Xxxxx, Inc. Delaware
Raschel Fashion Interknitting, Ltd. New York
Curtains and Fabrics, Inc. New York
SUBSIDIARIES WHICH ARE SIGNIFICANT FOREIGN SUBSIDIARIES
-------------------------------------------------------
Name Jurisdiction of Incorporation
---- -----------------------------
Guilford Europe Limited United Kingdom
American Textil, S.A. de C.V. Mexico
SUBSIDIARIES WHICH ARE NOT SIGNIFICANT DOMESTIC SUBSIDIARIES, SIGNIFICANT
-------------------------------------------------------------------------
FOREIGN SUBSIDIARIES OR SIGNIFICANT DIRECT FOREIGN SUBSIDIARIES
---------------------------------------------------------------
Name Jurisdiction of Incorporation or Organization
---- ---------------------------------------------
Guilford International, Inc. U.S. Virgin Islands
Gold Xxxxx Farms, Inc. New York
Guilford Airmont, Inc. North Carolina
Advisory Research Services, Inc. North Carolina
Xxxxxxxx Xxxxx (Michigan), Inc. Michigan
Xxxxxxxx Xxxxx Europe Limited United Kingdom
Guilford Deutschland GmbH Germany
Guilford Europe Pension Trustees Limited United Kingdom
Guilford Wovens Limited United Kingdom
Rouquinet Xxxxx Limited United Kingdom
Xxxxxxx Laces, Ltd. New York
Servicios Corporativos Ambar, S.A. de C.V. Mexico
GFD Services, Inc. Delaware
GFD Fabrics, Inc. North Carolina
Twin Rivers Textile Printing & Finishing North Carolina (general partnership)
248
GMI Computer Sales, Inc. North Carolina
Mexican Industries of North Carolina, Inc. North Carolina
Industrias Mexicanas xx Xxxxxxx, X.X. de C.V. Mexico
Industrias Globales de Mexico, S.A. de C.V. Mexico
Guilford Automocion Iberica S.L. Spain
Xxxxxxxx Xxxxx do Brasil Ltda. Brazil
Xxxxxxxx Xxxxx Texteis Iberica Limitada Portugal
Xxxxxxxx Xxxxx Automotive (Portugal) Limited United Kingdom
Xxxxxxxx Xxxxx Automotive (Czech Republic) Limited United Kingdom
Nustart, S.A. de C.V. Mexico
SUBSIDIARIES WHICH ARE SIGNIFICANT DIRECT FOREIGN SUBSIDIARIES
--------------------------------------------------------------
Xxxxxxxx Xxxxx Limited United Kingdom
Grupo Ambar, S.A. de C.V. Mexico
Guilford de Tamaulipas, S.A. de C.V. Mexico
Guilford de Altamira, S.A. de C.V. Mexico
249
Schedule 4.14
-------------
ENVIRONMENTAL MATTERS
In 1992, Xxxxxxxx Xxxxx, Inc. (the "Company") received a notice from
the North Carolina Department of Environment, Health, and Natural Resources
("DEHNR") of the Company's potential liability with respect to certain remedial
actions taken or to be taken at Seaboard Chemical Corporation ("Seaboard"), an
operator of a facility for the treatment, storage and disposal of hazardous
substances at Jamestown, North Carolina from approximately 1975 until 1989.
Seaboard's bankruptcy trustee commenced in 1990 the closure of the facility
according to the terms of the Resource, Conservation and Recovery Act, but
certain actions remain to be taken to complete the closure and to xxxxx the
release or threat of release of hazardous substances at the site.
According to the notice received from DEHNR, DEHNR had reason to
believe that the Company generated, transported, or brokered hazardous
substances treated, stored or disposed of at Seaboard, and as a result, DEHNR
had determined that the Company might be a potential responsible party ("PRP")
under N.C.G.S. Section 130A-303.
In December 1993, the Company joined the Seaboard Group, a group of
other PRPs who organized to respond in common to DEHNR's notice. The Seaboard
Group entered an Administrative Order on Consent ("AOC") with DEHNR under which
the members of the Group agreed to perform the measures prescribed in the
State's Imminent Hazard Order. In exchange, DEHNR covenated not to xxx the
members for matters addressed in the AOC upon satisfactory completion of the
work. DEHNR has formally notified the Group that all aspects of the AOC have
been satisfactorily completed, so that the covenant not to xxx has now become
effective. The covenant not to xxx applies only to the Phase I portion of the
clean-up (consisting of a surface clean-up and an evaluation of the extent of
soil and groundwater contamination). In February, 1995, the Company, in its own
name and as a successor by merger to Oak Ridge Textiles, Inc. which had shipped
substances to the Seaboard site, but which had paid no Phase I assessment,
joined the Phase II portion of the clean-up, as DEHNR has asserted that
additional response actions at the site are necessary. In connection with
participating in Phase II, the Company paid an initial assessment in the
aggregate amount of $2,889 to the Seaboard Group ($1,889 for Oak Ridge Textile's
share and $1,000 for the Company's share). The Seaboard Group is in the process
of conducting a feasibility study for purposes of determining what remedial
measures are appropriate. Following the completion of that study, the group will
commence negotiations with DEHNR concerning the terms of a consent decree.
250
Schedule 5.15
-------------
EXISTING INVESTMENTS
COMPANY NAME STATE OR OTHER % OWNED CAPITAL INVESTMENT APRIL INTERCOMPANY
JURISDICTION OF (by Parent) 02, 2000 LOANS/GUARANTEES
INCORPORATION OR STOCK PAID IN RE TOTAL EQUITY AMOUNT LENDER/COMMENTS
ORGANIZATION CAP
251
Schedule 5.25
-------------
PLANTS AND OTHER REAL PROPERTY
XXXXXXXX XXXXX, INC. PLANTS
---------------------------
PRINCIPAL PRINCIPAL LOCATION COUNTY FACILITY LEASE/ THIRD PARTY APPROX
SEGMENT PURPOSES OWN CONSENT SQ.FT.
REQUIRED(6)
Apparel Manufacturing Greensboro, NC Xxxxxxxx Xxxxxxx Plant Owned 560,391
Apparel Manufacturing Greensboro, NC Xxxxxxxx Xxxxxxxxx Plant Owned 479,222
Apparel Manufacturing Lumberton, Nc Xxxxxxx Lumberton Circular Knit Plant Owned 134,402
Apparel Manufacturing Pine Grove, PA(7) Schuykill Pine Grove Knitting, Dyeing Owned 676,966
Plants
Apparel/Home
Fashions Manufacturing Cobleskill, NY(8) Schoharie North Plant-Cobleskill Owned X 86,000
Apparel/Home
Fashions Manufacturing Cobleskill, NY(9) Schoharie South Plant-Cobleskill X 350,000
Apparel/Home Manufacturing/
Fashions Warehouse Cobleskill, NY(4) Schoharie Warehouse-Cobleskill 121,500
US Automotive Manufacturing Greensboro, NC Guilford Friendship Leased 305,075
US Automotive Manufacturing Wallace, NC Xxxxxx Xxxxxxx-Weaving Leased 332,840
US Automotive Manufacturing Kenansville, NC Duplin Guilford East Automotive Plant Owned 560,552
Home Fashions Manufacturing Herkimer, NY(10) Herkimer Herkimer Bedding Plant X 164,026
Home Fashions Manufacturing Herkimer, NY(5) Herkimer Herkimer Curtain Plant X 267,162
Home Fashions Manufacturing Herkimer, NY(5) Herkimer Herkimer Maint/Waste Plant X 21,118
Fibers Manufacturing Fuquay-Varina, NC Wake Fuquay-Varina Fiber Plant Owned 378,374
Fibers Manufacturing Greensboro, NC Xxxxxxxx Xxxxxxxx Warping Plant Owned 323,936
----------
6 If so, include name and address of Third Party
7 Owned by Gold Xxxxx, Inc.
8 Owned Raschel Fashion Interknitting, Ltd.
9 Property is owned by Schoharie County XXX and leased by Raschel Fasher
Interknitting, Ltd.
10 Property is owned by the Herkimer County XXX and leased to Curtains and
Fabrics, Inc.
252
------------------------------------------- --------------------------------------------------------------------------
LOCATION LANDLORD
------------------------------------------- --------------------------------------------------------------------------
000 0xx Xxxxxx Xxxxx Xxxxxx XXX
Xxx Xxxx, XX 000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
------------------------------------------- --------------------------------------------------------------------------
000 X. Xxxxxxx Xxxx. The Equitable Life Assurance Society of The United States
Los Angeles, CA 000 X. Xxxxx Xxxxxx, X000
Xxx Xxxxxxx, XX 00000-0000
------------------------------------------- --------------------------------------------------------------------------
Herkimer, NY Herkimer County Industrial Development Agency
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
------------------------------------------- --------------------------------------------------------------------------
Cobleskill, NY Schoharie Count Industrial Development Agency
RR3, Box 12, 0 Xxxxxxx Xxxxxxx Xxxx
Xxxxxxxxxx XX 00000
------------------------------------------- --------------------------------------------------------------------------
*Note: The above party is in negotiations to see this property to California
Mart, L.L.C., 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000
253
XXXXXXXX XXXXX, INC. OTHER REAL PROPERTY(11)
--------------------------------------------
PRINCIPAL PRINCIPAL PURPOSES LOCATION COUNTY FACILITY LEASE/OWN THIRD PARTY APPROX
SEGMENT CONSENT SQ.FT.
REQUIRED(12)
Apparel Sales Los Angeles, CA Apparel Sales Office Leased X 4,544
Apparel Sales New York, NY 000 0xx Xxxxxx XX Leased X 30,000
Apparel Warehouse Greensboro, NC(13) Guilford Airmont Warehouse Owned 64,885
CORPORATE ADMINISTRATION GREENSBORO, NC XXXXXXXX XXXXX BUILDING OWNED 44,615
CORPORATE ADMINISTRATION GREENSBORO, NC GUILFORD HR & PURCHASING
WENDOVER OWNED 9,250
CORPORATE ADMINISTRATION GREENSBORO, NC GUILFORD HR TRAINING FACILITY
WENDOVER OWNED 5,050
CORPORATE ADMINISTRATION/R&D GREENSBORO, NC GUILFORD IFD BUILDING OWNED 164,204
CORPORATE MINI WAREHOUSE(14) GREENSBORO, NC GUILFORD 4 OWNED
----------
11 Other Real Property designated as of the Closing Date as Designated Other
Real Property is shown in full capital letters and boldface.
12 If so, include name and address of Third Party
13 Owned by Gilford Airmont, Inc.
14 Xxxxxxxx Xxxxx, Inc. has entered into a ground lease with respect to such
property, pursuant to which an entity, 50% of which is owned by Xxxxxxxx Xxxxx,
Inc., leases land in connection with the operation of a mini-warehouse facility.
254
RIDER 1
------------------------------------------- --------------------------------------------------------------------------
LOCATION LANDLORD
------------------------------------------- --------------------------------------------------------------------------
000 0xx Xxxxxx Xxxxx Xxxxxx XXX
Xxx Xxxx, XX 000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
------------------------------------------- --------------------------------------------------------------------------
000 X. Xxxxxxx Xxxx. The Equitable Life Assurance Society of The United States
Los Angeles, CA 000 X. Xxxxx Xxxxxx, X000
Xxx Xxxxxxx, XX 00000-0000
------------------------------------------- --------------------------------------------------------------------------
Herkimer, NY Herkimer County Industrial Development Agency
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
------------------------------------------- --------------------------------------------------------------------------
Cobleskill, NY Schoharie Count Industrial Development Agency
RR3, Box 12, 0 Xxxxxxx Xxxxxxx Xxxx
Xxxxxxxxxx XX 00000
------------------------------------------- --------------------------------------------------------------------------
*Note: The above party is in negotiations to see this property to California
Mart, L.L.C., 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000
255
