EXECUTION COUNTERPART
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CREDIT AGREEMENT
Dated as of June 30, 1995
By and Among
GOLD ▇▇▇▇ INC.,
as Borrower,
VARIOUS BANKS AND LENDING INSTITUTIONS,
as Lenders,
and
TRUST COMPANY BANK,
AS AGENT.
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS.................................. 1
Section 1.1 Definitions.................................. 1
Section 1.2 Accounting Terms............................. 15
Section 1.3 Use of Defined Terms......................... 15
ARTICLE 2. CREDIT FACILITIES............................ 16
Section 2.1 Syndicated Loans............................. 16
Section 2.2 Bid Rate Loans............................... 17
Section 2.3 Letters of Credit............................ 17
ARTICLE 3. GENERAL LOAN AND LETTER OF CREDIT TERMS...... 17
Section 3.1 Notes; Repayment of Principal................ 17
Section 3.2 Amount Limitations........................... 17
Section 3.3 Reduction of Commitments..................... 18
Section 3.4 Extension of Revolving Loan Maturity Date.... 18
Section 3.5 Interest Rates and Interest Periods.......... 19
Section 3.6 Funding Notices.............................. 19
Section 3.7 Disbursement of Funds........................ 21
Section 3.8 Interest..................................... 22
Section 3.9 Fees......................................... 24
Section 3.10 Voluntary Prepayments of Borrowings.......... 24
Section 3.11 Letters of Credit............................ 25
Section 3.12 Payments, etc................................ 30
Section 3.13 Interest Rate Not Ascertainable, etc......... 32
Section 3.14 Illegality................................... 32
Section 3.15 Increased Costs.............................. 33
Section 3.16 Funding Losses............................... 34
Section 3.17 Assumptions Concerning Funding of Fixed
Rate Advances................................ 35
Section 3.18 Apportionment of Payments.................... 35
Section 3.19 Sharing of Payments, Etc..................... 35
Section 3.20 Capital Adequacy............................. 36
Section 3.21 Use of Proceeds.............................. 36
ARTICLE 4. CONDITIONS TO LOAN CLOSING AND EXTENSIONS
OF LOANS..................................... 36
Section 4.1 Conditions Precedent to Initial
Loans........................................ 36
Section 4.2 Conditions to all Loans...................... 38
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ARTICLE 5. REPRESENTATIONS AND WARRANTIES................ 39
Section 5.1 Organization and Qualification................ 39
Section 5.2 Financial Statements.......................... 39
Section 5.3 Taxes......................................... 40
Section 5.4 Actions Pending............................... 40
Section 5.5 Title to Properties........................... 40
Section 5.6 Regulation U, Etc............................. 40
Section 5.7 ERISA......................................... 41
Section 5.8 Outstanding Debt.............................. 41
Section 5.9 Conflicting Agreements or Other
Matters....................................... 41
Section 5.10 Possession of Franchises, Licenses,
Etc........................................... 42
Section 5.11 Governmental Consent.......................... 42
Section 5.12 Disclosure.................................... 43
Section 5.13 Foreign Assets Control Regulations............ 43
Section 5.14 Labor Relations............................... 43
Section 5.15 Enforceability of Agreement................... 43
Section 5.16 Subsidiaries.................................. 44
Section 5.17 Insurance Coverage............................ 44
Section 5.18 Investments................................... 44
Section 5.19 Intercompany Loans; Dividends................. 44
ARTICLE 6. AFFIRMATIVE COVENANTS......................... 44
Section 6.1 Financial Statements.......................... 44
Section 6.2 Inspection of Property........................ 46
Section 6.3 Insurance..................................... 46
Section 6.4 Conduct of Business........................... 46
Section 6.5 Corporate Existence; Maintenance of
Properties.................................... 46
Section 6.6 Environmental Laws............................ 47
Section 6.7 Taxes......................................... 48
Section 6.8 Keeping of Books; Fiscal Year................. 48
Section 6.9 Compliance with Laws and Other Agreements..... 48
Section 6.10 Notice of Default............................. 48
Section 6.11 Notice of Litigation.......................... 49
Section 6.12 ERISA......................................... 49
Section 6.13 Use of Proceeds............................... 49
ARTICLE 7. NEGATIVE COVENANTS............................ 50
Section 7.1 Financial Covenants........................... 50
Section 7.2 Limitation on Restricted Payments............. 50
Section 7.3 Liens......................................... 50
Section 7.4 Restrictions on Loans, Advances, Investments
and Contingent Liabilities.................... 51
Section 7.5 Sale of Stock and Debt of
Subsidiaries.................................. 53
Section 7.6 Merger and Sale of Assets..................... 53
Section 7.7 Sale and Lease-Back........................... 54
Section 7.8 Sale or Discount of Receivables............... 54
Section 7.9 Commodity Contracts........................... 54
Section 7.10 Issuance of Stock by Restricted Subsidiaries.. 54
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ARTICLE 8. EVENTS OF DEFAULT AND REMEDIES............... 54
Section 8.1 Events of Default............................ 54
Section 8.2 Remedies on Default.......................... 57
ARTICLE 9. THE AGENT.................................... 58
Section 9.1 Appointment and Authorization................ 58
Section 9.2 Nature of Duties of the Agent................ 59
Section 9.3 Lack of Reliance on the Agent................ 59
Section 9.4 Certain Rights of the Agent.................. 60
Section 9.5 Liability of the Agent....................... 60
Section 9.6 Indemnification.............................. 61
Section 9.7 The Agent and Affiliates..................... 62
Section 9.8 Successor Agent.............................. 62
ARTICLE 10. MISCELLANEOUS................................ 63
Section 10.1 Notices...................................... 63
Section 10.2 Amendments, Etc.............................. 63
Section 10.3 No Waiver; Remedies Cumulative............... 63
Section 10.4 Payment of Expenses, Etc..................... 64
Section 10.5 Right of Setoff.............................. 65
Section 10.6 Benefit of Agreement......................... 66
Section 10.7 Governing Law; Submission to Jurisdiction,
Etc.......................................... 68
Section 10.8 Independent Nature of the Lenders' Rights.... 69
Section 10.9 Counterparts................................. 69
Section 10.10 Effectiveness; Survival...................... 69
Section 10.11 Severability................................. 70
Section 10.12 Independence of Covenants.................... 70
Section 10.13 Change in Accounting Principles,
Fiscal Year or Tax Laws...................... 70
Section 10.14 Headings Descriptive; Entire
Agreement.................................... 70
Section 10.15 Time is of the Essence....................... 71
Section 10.16 Usury........................................ 71
Section 10.17 Construction................................. 71
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EXHIBITS:
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Exhibit A - Form of Bid Rate Note
Exhibit B - Form of Syndicated Note
Exhibit C - Form of Letter of Credit Application
Exhibit D - Form of Notice of Borrowing
Exhibit E - Form of Bid Rate Request
Exhibit F - Form of Bid Rate Quote
Exhibit G - Form of Bid Rate Acceptance
Exhibit H - Form of Notice of Continuation/Conversion
Exhibit I - Form of Special Counsel Opinion
Exhibit J - Form of General Counsel Opinion
Exhibit K - Form of Assignment and Acceptance
SCHEDULES:
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Schedule 1.1 - Subordinated Debt
Schedule 5.4 - Litigation
Schedule 5.6 - Margin Stock
Schedule 5.9 - Conflicting Agreements
Schedule 5.14 - Labor Relations
Schedule 5.16 - Subsidiaries
Schedule 7.3 - Liens
Schedule 7.4 - Investments
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CREDIT AGREEMENT
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THIS CREDIT AGREEMENT, dated as of June 30, 1995, is made and entered
into by and among GOLD ▇▇▇▇ INC., a cooperative marketing association organized
and existing under the laws of the State of Georgia (the "Borrower"), various
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banks and other lending institutions as are, or may from time to time become,
parties hereto (collectively, the "Lenders" and individually, a "Lender"), and
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TRUST COMPANY BANK, a Georgia banking corporation ("Trust Company"), as agent
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for the Lenders.
W I T N E S S E T H:
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WHEREAS, at the request of the Borrower, the Lenders have agreed to
provide certain credit facilities to the Borrower on the terms and subject to
the conditions set forth herein;
NOW, THEREFORE, in consideration of the sum of $10.00 in hand paid by
the Lenders to the Borrower, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE 1.
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DEFINITIONS
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Section 1.1. Definitions. In addition to the other terms defined
-----------
herein, the following terms used herein shall have the meanings herein specified
(to be equally applicable to both the singular and plural forms of the terms
defined herein):
"Advance" shall mean any principal amount advanced and remaining
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outstanding at any time by the Lenders under (a) the Revolving Credit
Commitment, (b) the 364-Day Line of Credit Com mitment, or (c) the Seasonal Line
of Credit Commitment.
"Affiliate" shall mean, with respect to any Person, a Person directly
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or indirectly controlling or controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, the power
(a) to vote 10% or more of the securities having ordinary voting power for the
election of directors of such Person or (b) to direct or cause the direction of
the management and policies of such corporation, whether through the ownership
of voting securities, by contract or otherwise. Additionally, for purposes of
this Agreement, Golden Peanut and Young Pecan shall be considered Affiliates of
the Borrower and its Subsidiaries notwithstanding anything else to the contrary
contained herein.
"Agent" shall mean Trust Company, as agent for the Lenders hereunder
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and under the other Loan Documents, and each successor agent appointed in
accordance with Section 9.8 of this Agreement.
"Agreement" shall mean this Credit Agreement, either as originally
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executed or as it may be from time to time supplemented, amended, restated,
renewed, extended or otherwise modified.
"AgriGolden" shall mean AgriGolden, Inc., a corporation formed under
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the laws of the State of Georgia.
"Applicable Percentage" shall mean (a) with respect to the Revolving
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Loans, the letter of credit fee, the facility fee, and the commitment fee, on a
per annum basis, the percentage designated below under the applicable column
heading and corresponding to the ratio of Consolidated Funded Debt to Total
Capital:
LETTER OF
CREDIT FEE
AND
CONSOLIDATED FUNDED REVOLVING FACILITY COMMITMENT
DEBT TO TOTAL CAPITAL LOANS FEE FEES
-------------------------- ---------- --------- -----------
Less than 25% 0.15% 0.10% 0.025%
Greater than or equal to
25% but less than 35% 0.25% 0.125% 0.025%
Greater than or equal to
35% but less than 50% 0.375% 0.125% 0.075%
Greater than 50% 0.50% 0.125% 0.125%
The Applicable Percentage shall be determined quarterly (and the rate determined
at that time shall apply until the next quarterly determination) based upon the
ratio of Consolidated Funded Debt to Total Capital determined pursuant to the
financial statements delivered to the Lenders pursuant to Section 6.1(a) or
Section 6.1(b) hereof, as the case may be, with such Applicable Percentage to be
effective with respect to calculations based upon such
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financial statements as of the first day of the second fiscal quarter
immediately following the fiscal quarter for which such financial statements are
delivered; provided, however, that the Applicable Percentage from the Closing
Date until July 1, 1995 shall be 0.25% for Revolving Loans and the letter of
credit fee, 0.125% for the facility fee, and 0.025% for the commitment fee; or
(b) with respect to the 364-Day Loans and the Seasonal Loans, on a per
annum basis, 0.275%.
"Assignment and Acceptance" shall mean an assignment and acceptance
-------------------------
agreement entered into by a Lender and an Eligible Assignee in accordance with
the terms and conditions of this Agreement and substantially in the form of
Exhibit K attached hereto.
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"Base Rate" shall mean the higher of (a) the Prime Rate or (b) the Federal
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Funds Rate plus one-half of one percent (0.5%) per annum.
"Base Rate Advance" shall mean any Advance hereunder that bears interest
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based on the Base Rate.
"Base Rate Borrowing" shall mean any Borrowing hereunder that bears
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interest based on the Base Rate.
"Bid Rate" shall mean the rate of interest per annum offered by any Lender
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pursuant to the terms of Section 3.6(a)(ii) of this Agreement.
"Bid Rate Acceptance" has the meaning set forth in Section 3.6(a)(ii) of
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this Agreement.
"Bid Rate Advance" shall mean any Advance hereunder that bears interest
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based on the Bid Rate.
"Bid Rate Loan" shall mean any Loan made by a Lender pursuant to Section
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2.2 of this Agreement.
"Bid Rate Notes" shall mean, collectively, the promissory notes evidencing
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the Bid Rate Loans in substantially the form of Exhibit A attached hereto.
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"Bid Rate Quote" has the meaning set forth in Section 3.6(a)(ii) of this
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Agreement.
"Bid Rate Request" has the meaning set forth in Section
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3.6(a)(ii) of this Agreement.
"Borrowing" shall mean the incurrence by the Borrower under any Facility of
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Advances of one Type concurrently having the same Interest Period or the
continuation or conversion of an existing Borrowing or Borrowings in whole or in
part.
"Business Day" shall mean, (a) with respect to Eurodollar Borrowings, any
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day other than a Saturday or Sunday or a day on which commercial banks are
required or permitted to be closed for domestic and international business,
including dealings in Dollar deposits, in London, England, New York, New York,
and Atlanta, Georgia and (b) with respect to all other Borrowings and as used in
all other contexts, any day other than a Saturday or Sunday or a day on which
commercial banks are required or permitted to be closed for business in Atlanta,
Georgia or New York, New York.
"Capital Lease" shall mean any lease or rental of real or personal property
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which, under GAAP, is or will be required to be capitalized on the balance sheet
of the Borrower or any Restricted Subsidiary, taken at the amount thereof
accounted for as indebtedness (net of interest expense) in accordance with such
principles.
"Carolina Golden" shall mean Carolina Golden Products Company, a general
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partnership formed under the laws of the State of Georgia, with AgriGolden and
Golden Poultry acting as general partners.
"Closing Date" shall mean the date which this Agreement is originally
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dated.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
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to time.
"Commitments" shall mean, at any time for any Lender, the sum of such
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Lender's (a) Revolving Credit Commitment, (b) Seasonal Line of Credit Commitment
and (c) 364-Day Line of Credit Commitment.
"Consolidated Funded Debt" shall mean (a) Funded Debt of the Borrower and
------------------------
its Restricted Subsidiaries, plus (b) (i) 50% of the Funded Debt of Golden
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Peanut if ▇▇▇▇▇▇-▇▇▇▇▇▇▇-Midland Company is a general partner of Golden Peanut
or (ii) 100% of the Funded Debt of Golden Peanut in all other cases, plus (c)
----
100% of the Funded Debt of Young Pecan, plus (d) the Funded Debt of any other
----
Person which (i) has been guaranteed by the Borrower or any Restricted
Subsidiary or (ii) is supported by a letter of credit issued for the account of
the Borrower or any Restricted Subsidiary, all
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consolidated in accordance with GAAP.
"Consolidated Interest Expense" shall mean, for any period, total interest
-----------------------------
expense for such period of the Borrower and its Restricted Subsidiaries
(including without limitation, interest expense attributable to Capital Leases
in accordance with GAAP, all commissions, discounts and other fees and charges
owed with respect to bankers acceptance financing, and total interest expense
(whether shown as interest expense or as loss and expenses on sale of
receivables) under a receivables purchase facility) determined on a consolidated
basis in accordance with GAAP.
"Consolidated Net Earnings" shall mean consolidated gross revenues of the
-------------------------
Borrower and its Restricted Subsidiaries before extraordinary items (but after
giving effect to the credit resulting from any tax loss carry forwards) less all
operating and non-operating expenses of the Borrower and its Restricted
Subsidiaries including all charges of a proper character (including current and
deferred taxes on income and current additions to reserves but excluding equity
losses of Golden Peanut and Young Pecan, if any), but not including in gross
revenues any gains (net of expenses and taxes applicable thereto) in excess of
losses resulting from the sale, conversion or other disposition of capital
assets (i.e., assets other than current assets), any gains resulting from the
- -
write-up of assets, any equity of the Borrower or any Restricted Subsidiary in
the unremitted earnings of any corporation which is not a Subsidiary or any
earnings of any Person acquired by the Borrower or any Restricted Subsidiary
through purchase, merger or consolidation or otherwise for any year prior to the
year of acquisition, or any deferred credit representing the excess of equity in
any Subsidiary at the date of acquisition over the cost of investment in such
Subsidiary; all determined in accordance with GAAP.
"Consolidated Net Earnings Available for Restricted Payments" shall mean an
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amount equal to the sum of (a) $25,000,000 plus (b) 50% of Consolidated Net
----
Earnings (less 100% of cumulative net losses) for the period (taken as one
accounting period) commencing on December 31, 1994 and terminating at the end of
the last fiscal quarter preceding the date of any proposed Restricted Payment,
plus (c) the net proceeds of sale of preferred stock and other equity sold after
----
December 31, 1994.
"Consolidated Total Assets" shall mean all assets of the Borrower and its
-------------------------
Restricted Subsidiaries, consolidated in accordance with GAAP.
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"Crop Indebtedness" shall mean any Debt incurred by the Bor rower, any
-----------------
Restricted Subsidiary, Golden Peanut, Young Pecan or any other Person (if the
Borrower or any Restricted Subsidiary is liable, directly or contingently, for
the Debt of such Person), for the sole purpose of buying crops for resale (other
than as an ingredient), as reasonably identified in good faith by the Borrower
and so certified to the Agent.
"Crop Year" shall mean the twelve month period beginning July 1 for those
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crops harvested in that period.
"Current Debt" shall mean any indebtedness for money borrowed (including
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Crop Indebtedness, subordinated loan certificates, bankers acceptances,
commodity discount loans, and notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money,
but excluding the current portion of Funded Debt) payable on demand or within a
pe riod of one year from the date of the creation thereof; provided that any
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obligation (other than Crop Indebtedness which is not Long-term Crop
Indebtedness) shall be treated as Funded Debt, re gardless of its term, if such
obligation is renewable pursuant to the terms thereof or of a revolving credit
or similar agreement effective for more than one year after the date of creation
of such obligation, or may be payable out of the proceeds of a similar
obligation pursuant to the terms of such obligation or of any such agreement.
Any obligation secured by a Lien on, or payable out of the proceeds of
production from, property of the company or any Subsidiary shall be deemed to be
Funded Debt or Current Debt, as the case may be, of the Borrower or such
Subsidiary even though such obligation shall not be assumed by the Borrower or
such Sub sidiary.
"Debt" shall mean Funded Debt and Current Debt, as the case may be.
----
"Default" shall mean any event that, with notice or lapse of time or both,
-------
would constitute an Event of Default.
"Dollar" and the sign "$" shall mean lawful money of the United States of
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America.
"EBIT" shall mean, for any period, an amount equal to (a) the sum for such
----
period of Consolidated Net Earnings plus, to the extent subtracted in
----
determining such Consolidated Net Earnings, provisions for taxes based on income
and Consolidated Interest Expense, minus (b) any items of gain or plus any items
----- ----
of loss, which were included in determining such Consolidated Net Earnings and
were (1) not realized in the ordinary course of business or (2) the result of
any sale of assets.
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"Eligible Assignee" shall mean (i) a commercial finance or asset based
-----------------
lending institution having total assets in excess of $1,000,000,000 or any
commercial finance or asset based lending Affiliate of any such Person or (ii)
any Lender or any Affiliate of any Lender.
"Environmental Laws" shall mean all federal, state, local and foreign
------------------
statutes and codes or regulations, rules or ordinances issued, promulgated, or
approved thereunder, now or hereafter in effect (including, without limitation,
those with respect to asbestos or asbestos containing material or exposure to
asbestos or asbestos containing material), relating to pollution or protection
of the environment and relating to public health and safety, relating to (i)
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or industrial toxic or hazardous constituents,
substances or wastes, including, without limitation, any Hazardous Substances,
petroleum, including crude oil or any fraction thereof, any petroleum product or
other waste, chemicals or substances regulated by any Environmental Law into the
environment (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), or (ii) the manufacture, processing,
distribution, use, generation, treatment, storage, disposal, transport or
handling of any Hazardous Substances, petroleum, including crude oil or any
fraction thereof, any petroleum product or other waste, chemicals or substances
regulated by any Environmental Law, and (iii) underground storage tanks and
related piping, and emissions, discharges and releases or threatened releases
therefrom, such Environmental Laws to include, without limitation, (i) the Clean
Air Act (42 U.S.C. (S) 7401 et seq.), (ii) the Clean Water Act (33 U.S.C. (S)
------
1251 et seq.), (iii) the Resource Conservation and Recovery Act (42 U.S.C. (S)
------
6901 et seq.), (iv) the Toxic Substances Control Act (15 U.S.C. (S) 2601 et
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seq.), and (v) the Comprehensive Environmental Response Compensation and
Liability Act, as amended by the Superfund Amendments and Reauthorization Act
(42 U.S.C. (S) 9601 et seq.).
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"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
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amended.
"ERISA Affiliate" shall mean any trade or business (whether incorporated or
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unincorporated) which is a member of a group de scribed in Section 414(c) of the
Code, of which the Borrower is also a member.
"Eurodollar Advance" shall mean any Advance hereunder which bears interest
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based on LIBOR.
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"Eurodollar Borrowing" shall mean any Borrowing hereunder which bears
--------------------
interest based on LIBOR.
"Event of Default" shall have the meaning set forth in Article 8.
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"Facility" shall mean the credit facilities established by the Lenders
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under Article 2 of this Agreement.
"Federal Funds Rate" shall mean for any period, a fluctuating interest rate
------------------
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with member banks of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by the Agent.
"Fee Letter" shall mean the fee letter dated as of even date herewith
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addressed by Trust Company to the Borrower.
"Fixed Rate Advance" shall mean any Advance which is either a Eurodollar
------------------
Advance or a Bid Rate Advance.
"Funded Debt" shall mean, as to any Person, and include without
-----------
duplication:
(a) all Indebtedness for money borrowed, including, without limitation,
purchase money mortgages, leases capitalized in accordance with Financial
Accounting Standards Board Statement No. 13, outstandings under asset
securitization programs, conditional sales contracts and similar title retention
debt instruments (including any current maturities of such indebtedness) payable
more than one year from the date of calculation thereof or which is renewable
under any revolving or similar agreement, which under GAAP is shown on the
balance sheet as a liability (but excluding reserves for deferred income taxes
and other reserves to the extent such reserves do not constitute an obligation);
and
(b) Guarantees, endorsements (other than endorsements of negotiable
instruments for collection in the ordinary course of business) and other
contingent liabilities (whether direct or in direct) in connection with the
obligations, stock or dividends of any other Person; and
(c) obligations under any other contract in connection with
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any borrowing which, in effect, is substantially equivalent to a guarantee; and
(d) obligations with respect to any redeemable preferred stock which is
required or scheduled to be redeemed within one year from the date of
calculation; and
(e) Long-term Crop Indebtedness.
Any obligation secured by a Lien on, or payable out of the proceeds of
production from, property of the Borrower or any Subsidiary shall be deemed to
be Funded Debt or Current Debt, as the case may be, of the Borrower or such
Subsidiary even though such obligation shall not be assumed by the Borrower or
such Subsidiary.
"GAAP" shall mean generally accepted accounting principles as set forth in
----
statements from Auditing Standards No. 69 issued by the Auditing Standards Board
of the American Institute of Certified Public Accountants as well as statements
and pronouncements of the Financial Accounting Standards Board that are
applicable, in each case as such principles are supplemented and amended from
time to time.
"GC Properties" shall mean GC Properties, a general partnership formed
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under the laws of the State of Georgia, with the Borrower and Cotton States
Insurance Companies acting as the general partners.
"GK Finance" shall mean GK Finance Corporation, a corporation organized and
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existing under the laws of the State of Delaware, which is a wholly-owned
Subsidiary of the Borrower.
"Golden Peanut" shall mean Golden Peanut Company, a general partnership
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formed under the laws of the State of Georgia with the Borrower, Alimenta (USA),
Inc., a Florida corporation, and ▇▇▇▇▇▇-▇▇▇▇▇▇▇-Midland Company, a Delaware
corporation, acting as general partners.
"Golden Poultry" shall mean Golden Poultry Company, Inc., a corporation
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organized and existing under the laws of the State of Georgia, which is a
Subsidiary of the Borrower.
"Guaranty" shall mean any contractual obligation, contingent or otherwise,
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of a Person with respect to any Indebtedness or other obligation or liability of
another Person, including without limitation, any such Indebtedness, obligation
or liability directly or indirectly guaranteed, endorsed, co-made or discounted
or sold
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with recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable, including contractual obligations (contingent or
otherwise) arising through any agreement to purchase, repurchase, or otherwise
acquire such Indebtedness, obligation or liability or any security therefor, or
any agreement to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make any payment other than for value received. The amount of
any Guaranty shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which guaranty is made or, if not
so stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
"Hazardous Substances" shall have the meaning assigned to that term in the
--------------------
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Acts of 1986.
"Hedging Contracts" shall mean any forward contracts, futures contracts,
-----------------
foreign exchange contracts, currency swap agreements, interest rate exchange
agreements, interest rate cap agreements, interest rate collar agreements, and
other similar agreements and arrangements entered into by any Person designed to
protect against fluctuations in either foreign exchange rates or interest rates.
"Indebtedness" of any Person shall mean, without duplication (i) all
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obligations of such Person which in accordance with GAAP would be shown on the
balance sheet of such Person as a liability (including, without limitation,
obligations for borrowed money and for the deferred purchase price of property
or services, and obligations evidenced by bonds, debentures, notes or other
similar instruments); (ii) all rental obligations under leases required to be
capitalized under GAAP; (iii) all Guaranties of such Person (including
contingent reimbursement obligations under undrawn letters of credit); (iv)
Indebtedness of others secured by any Lien upon property owned by such Person,
whether or not assumed; and (v) obligations or other liabilities under Hedging
Contracts, or similar agreements or combinations thereof which are disclosed as
liabilities on the balance sheet of such Person in accordance with GAAP.
"Indemnitee" has the meaning set forth in Section 10.4 of this Agreement.
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"Interest Period" shall mean, (a) with respect to any Euro dollar
---------------
Borrowing, a period of 1, 2, 3 or 6 months, or (b) with
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respect to any Bid Rate Borrowing, such periods of time (expressed in days)
which are agreed upon between the Borrower and the Lender(s) providing the
relevant Loan(s), as the Borrower may elect as provided in this Agreement;
provided, that (i) the first day of an Interest Period must be a Business Day,
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(ii) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day, unless such
Business Day falls in the next calendar month, in which case the Interest Period
shall end on the next preceding Business Day, and (iii) the Borrower may not
elect an Interest Period which would extend beyond the Maturity Date which
relates to the Commitment under which the Borrower is borrowing.
"Letter of Credit" shall mean an irrevocable standby letter of credit
----------------
issued by Trust Company hereunder for the account of the Borrower.
"Letter of Credit Application" shall mean an application to Trust Company
----------------------------
for the issuance of a Letter of Credit in the form of Exhibit C, with such
---------
changes as the Borrower and Trust Company shall approve.
"Letter of Credit Liabilities" shall mean, at any time, the sum of (a) the
----------------------------
stated amounts of all Letters of Credit and (b) the aggregate unpaid principal
amount of all reimbursement obligations of the Borrower in respect of all
drawings made under all Letters of Credit.
"Letter of Credit Sublimit" shall mean $5,000,000.
-------------------------
"LIBOR" shall mean, with respect to any Interest Period, for any Eurodollar
-----
Advances, the rate per annum equal to the sum of the rate obtained by dividing
(a) the offered rate for deposits for a period comparable to the Interest Period
and in an amount comparable to the Agent's portion of such Eurodollar Advances,
appearing on Telerate Page 3750 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 by
(b) a percentage equal to 1 minus the then stated maximum rate (stated as a
-----
decimal) of all reserve requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves) applicable to any
member bank of the Federal Reserve System in respect of Eurocurrency liabilities
as defined in Regulation D (or against any successor category of liabilities as
defined in Regulation D). If the foregoing rate is unavailable from Telerate
for any reason, then such rate shall be determined by the Agent from any other
interest rate reporting service of recognized standing designated
-11-
in writing by the Agent to the Borrower and the other Lenders. If two or more
rates appear on such Telerate page, then the rate per annum for that Interest
Period shall be the arithmetic average of such rates. In any case, such rate
shall be rounded, if necessary, to the next higher 1/16 of one percent if the
rate is not such a multiple.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
----
lien or charge of any kind (including any written agreement to give any of the
foregoing, any conditional sale or other title retention agreement, any lease in
the nature thereof, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction).
"Loan" shall mean, collectively, the Syndicated Loans and the Bid Rate
----
Loans.
"Loan Documents" shall mean and include, as the context re quires, this
--------------
Agreement, the Notes and any and all other instru ments, agreements, documents
and writings contemplated hereby or executed in connection herewith.
"Long-term Crop Indebtedness" shall mean (a) whenever the Old Crop
---------------------------
Inventory Percentage is greater than 5% at the end of any calendar quarter, the
Modified Old Crop Inventory Percentage multiplied by the amount of Crop
----------
Indebtedness, or (b) whenever the Old Crop Inventory Percentage is less than 5%,
zero.
"Material Adverse Effect" shall mean any material adverse change in (i) the
-----------------------
business, results of operations, financial condition, assets or prospects of the
Borrower and the Subsidiaries, taken as a whole, or (ii) the ability of Borrower
or the Subsidiaries to perform their obligations under this Agreement.
"Maturity Date" shall mean, as the context requires, any or all of (a) the
-------------
Revolving Loan Maturity Date, (b) the Seasonal Loan Maturity Date, and (c) the
364-Day Loan Maturity Date.
"Modified Old Crop Inventory Percentage" shall mean for any particular Crop
--------------------------------------
Year the value of either the peanut or pecan crop, as applicable, remaining in
the inventory of the Borrower, any Restricted Subsidiary, Golden Peanut or Young
Pecan at the end of the Peanut Sale Cycle or the Pecan Sale Cycle for that
particular Crop Year divided by the total inventory value for either peanuts or
----------
pecans, expressed as a percentage.
"Multiemployer Plan" shall mean any Plan which is a "multi employer plan"
------------------
(as such term is defined in Section 4001 of ERISA).
-12-
"Non-Issuing Lender" shall mean each Lender other than Trust Company.
------------------
"Notes" shall mean, collectively, the Syndicated Notes and the Bid Rate
-----
Notes, either as originally executed or as any of them may be from time to time
supplemented, modified, amended, renewed or extended, and shall not be deemed to
include any notes of the Borrower or any Subsidiary issued other than pursuant
to this Agreement.
"Notice of Borrowing" has the meaning set forth in Section 3.6(a)(i) of
-------------------
this Agreement.
"Notice of Continuation/Conversion" has the meaning set forth in Section
---------------------------------
3.6(b) of this Agreement.
"Officer's Certificate" shall mean a certificate signed in the name of the
---------------------
Borrower by its President, one of its Vice Presidents or its Treasurer.
"Old Crop Inventory Percentage" shall mean for any particular Crop Year the
-----------------------------
value of either the peanut or pecan crop, as applicable, remaining in the
inventory of the Borrower, any Restricted Subsidiary, Golden Peanut or Young
Pecan at the end of the Peanut Sale Cycle or the Pecan Sale Cycle for that
particular Crop Year divided by the total cost of procuring those crops,
------- --
expressed as a percentage.
"Payment Office" shall mean with respect to any payment of principal,
--------------
interest, fees or other amounts relating to any Loans, the office specified as
the "Payment Office" for the Agent and each Lender on the respective signature
pages of the Agent and the Lenders, or such other location as to which the Agent
or any Lender shall have given written notice to the Borrower.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
----
"Peanut Sale Cycle" shall mean the period of time from Sep tember 1 of any
-----------------
Crop Year to the last Business Day of January in the year which is two years
after such Crop Year.
"Pecan Sale Cycle" shall mean the period of time from October 1 of any Crop
----------------
Year to the last Business Day of January in the year which is two years after
such Crop Year.
"Person" shall mean and include an individual, a partnership, a joint
------
venture, a corporation, a trust, an unincorporated organization, a government or
any department or agency thereof and any other entity whatsoever.
"Plan" shall mean an "employee pension benefit plan" (as de fined in
----
Section 3 of ERISA), which is or has been established or maintained, or to which
contributions are or have been made, by the Borrower, any Subsidiary, or any
ERISA Affiliate.
"Prime Rate" shall mean the per annum rate of interest des ignated from
----------
time to time by Trust Company to be its prime rate, with any change in the rate
of interest resulting from a change in the Prime Rate to be effective as of the
opening of business of Trust Company on the day of such change; provided,
--------
however, that the Prime Rate is a reference rate and does not necessarily rep
-------
resent the lowest or best rate charged to customers and that Trust Company may
make loans at a rate of interest at, above or below the Prime Rate.
"Pro Rata Share" shall mean, with respect to each of the Commitments of
--------------
each Lender, each Syndicated Loan to be made by, and each payment (including,
without limitation, any payment of prin cipal, interest or fees) to be made to
each Lender with respect to the Syndicated Loans, the percentage designated as
such Lender's Pro Rata Share of such Commitments, such Loans or such payments,
as applicable, set forth under the name of such Lender on the re spective
signature page for such Lender, in each case as such Pro Rata Share may change
from time to time as a result of assignments or amendments made pursuant to this
Agreement, and shall mean, with respect to each of the Bid Rate Loans
(including, without limitation, any payment of principal, interest or fees), the
per centage of each of the Lenders participating in such Loan deter mined by
dividing the amount of such Lender's Bid Rate Advance relating thereto by the
total amount of such Bid Rate Loan.
"Prudential Indebtedness" shall mean all of the indebtedness (whether now
-----------------------
in existence or arising in the future) between Pruco Life Insurance Company
and/or The Prudential Insurance Company of America, as lenders, and the
Borrower, as borrower.
"Reportable Event" shall mean an event described in Section 4043(b) of
----------------
ERISA with respect to which the 30-day notice require ment has not been waived
by the PBGC.
"Required Lenders" shall mean, at any time, any Lender or group of Lenders
----------------
holding at least 66 2/3% of the sum of the amount of committed funds under the
Commitments, whether or not advanced.
"Restricted Payments" has the meaning set forth in Section 7.2 of this
-------------------
Agreement.
-13-
"Restricted Subsidiaries" shall mean all of the Borrower's Subsidiaries
-----------------------
except Golden Poultry.
"Revolving Credit Commitment" shall mean, at any time for any Lender, the
---------------------------
amount set forth opposite such Lender's name on the signature pages hereof under
the heading "Revolving Credit Com mitment", as the same may be increased or
decreased from time to time as a result of any reduction thereof pursuant to
Section 3.3 of this Agreement, any assignment thereof pursuant to Section 10.6
of this Agreement or any amendment thereof pursuant to Section 10.2 of this
Agreement.
"Revolving Loan Maturity Date" shall mean the fifth an niversary of the
----------------------------
Closing Date or such later date as provided for in Section 3.4 of this
Agreement.
"Revolving Loans" shall mean, collectively, the revolving credit loans made
---------------
to the Borrower by the Lenders pursuant to Section 2.1(a) of this Agreement.
"Seasonal Line of Credit Commitment" shall mean, at any time for any
----------------------------------
Lender, the amount set forth opposite such Lender's name on the signature pages
hereof under the heading "Seasonal Line of Credit Commitment", as the same may
be increased or decreased from time to time as a result of any reduction thereof
pursuant to Section 3.3 of this Agreement, any assignment thereof pursuant to
Section 10.6 of this Agreement or any amendment thereof pursuant to Section 10.2
of this Agreement.
"Seasonal Loan" shall mean, collectively, the revolving credit loans made
-------------
to the Borrower by the Lenders pursuant to Section 2.1(c) of this Agreement.
"Seasonal Loan Maturity Date" shall mean May 31, 1996.
---------------------------
"Shareholders' Equity" shall mean, with respect to any Person as at any
--------------------
date of determination, shareholders' equity of such Person determined on a
consolidated basis in conformity with GAAP.
"Subordinated Debt" shall mean all Indebtedness for money borrowed wherein
-----------------
the principal and premium, if any, and interest is subordinated and junior in
right of payment to the prior payment in full of all other Indebtedness of the
Borrower for money borrowed except other Subordinated Debt including, but not
limited to, the Subordinated Capital Certificates of Interest, Subordinated Loan
Certificates, Subordinated Large Denomination Loan Certificates, and 5%
Cumulative Preferred Capital Certificates of Interest,
-14-
issued by the Borrower, an example of whose subordination provisions is annexed
hereto as Schedule 1.1.
------------
"Subsidiary", of any Person, shall mean any other Person at least a
----------
majority of the Voting Stock of which shall, at the time as of which any
determination is being made, be owned by the Borrower either directly or through
Subsidiaries.
"Syndicated Loan" shall mean any Loan made by a Lender pursuant to Section
---------------
2.1 of this Agreement.
"Syndicated Notes" shall mean, collectively, the promissory notes
----------------
evidencing the Syndicated Loans in substantially the form of Exhibit B attached
---------
hereto.
"Taxes" shall mean any present or future taxes, levies, imposts, duties,
-----
fees, assessments, deductions, withholdings or other charges of whatever nature,
including without limitation, income, receipts, excise, property, sales,
transfer, license, payroll, withholding, social security and franchise taxes now
or hereafter imposed or levied by the United States, or any state, local or
foreign government or by any department, agency or other political subdivision
or taxing authority thereof or therein and all interest, penalties, additions
to tax and similar liabilities with respect thereto.
"364-Day Line of Credit Commitment" shall mean, at any time for any Lender,
---------------------------------
the amount set forth opposite such Lender's name on the signature pages hereof
under the heading "364-Day Line of Credit Commitment", as the same may be
increased or decreased from time to time as a result of any reduction thereof
pursuant to Section 3.3 of this Agreement, any assignment thereof pursuant to
Section 10.6 of this Agreement or any amendment thereof pursuant to Section 10.2
of this Agreement.
"364-Day Loan Maturity Date" shall mean the date which is two days prior
--------------------------
to the first anniversary of the Closing Date.
"364-Day Loans" shall mean, collectively, the revolving credit loans made
-------------
to the Borrower by the Lenders pursuant to Section 2.1(b) of this Agreement.
"Total Capital" shall mean the sum of Funded Debt and Shareholders' Equity.
-------------
"Trust Company" has the meaning set forth in the preamble of this
-------------
Agreement.
"Type" shall mean, with respect to a Borrowing, a Borrowing consisting of
----
Base Rate Advances, Eurodollar Advances or Bid Rate Advances.
-15-
"Voting Stock" shall mean, with respect to any Person, any shares of stock
------------
or other form of ownership interest of such Person having general voting power
under ordinary circumstances to elect a majority of the Board of Directors of
such Person (irrespective of whether or not at the time stock of any other class
or classes shall have or might have voting power by reason of the happening of
any contingency).
"Young Pecan" shall mean Young Pecan Company, a general partnership formed
-----------
under the laws of the State of South Carolina with GK Pecans, Inc. and Y Pecans,
Inc., a South Carolina corpo ration, as general partners.
Section 1.2. Accounting Terms. All accounting terms not specifically
----------------
defined herein shall have the meanings generally at tributed to them under GAAP
applied on a basis consistent with the financial statements identified in
Section 5.2 and the income and expense statements, the balance sheet and the
statements of income and cash flow furnished to the Agent pursuant to Section
6.1.
Section 1.3. Use of Defined Terms. All defined terms used in the plural
--------------------
preceded by the definite article shall be taken to encompass all members of the
relevant class. Any defined term used in the singular preceded by "any" shall
be taken to indicate any number of the members of the relevant class.
ARTICLE 2.
----------
CREDIT FACILITIES
-----------------
Section 2.1. Syndicated Loans.
----------------
(a) Revolving Credit Commitment. Subject to and upon the terms and
---------------------------
conditions herein set forth, each Lender severally establishes in favor of the
Borrower from the period beginning on the Closing Date up to but excluding the
Revolving Loan Maturity Date, its Revolving Credit Commitment. Each Lender,
subject to and upon the terms and conditions set forth herein, from time to
time, agrees to make to the Borrower Revolving Loans in an aggregate amount
outstanding at any time not to exceed such Lender's Revolving Credit Commitment.
Subject to the terms and conditions contained in this Agreement, the Borrower
shall be entitled to borrow, repay and reborrow Revolving Loans; provided,
--------
however, that
-------
-16-
the Borrower may neither borrow nor reborrow should there exist a Default or an
Event of Default. Additionally, each Revolving Loan shall be in an aggregate
amount of $1,000,000 or integral multiples of $100,000 in excess thereof.
(b) 364-Day Line of Credit Commitment. Subject to and upon the terms and
---------------------------------
conditions herein set forth, each Lender severally establishes in favor of the
Borrower from the period beginning on the Closing Date up to but excluding the
364-Day Loan Maturity Date, its 364-Day Line of Credit Commitment. Each Lender,
subject to and upon the terms and conditions set forth herein, from time to
time, agrees to make to the Borrower 364-Day Loans in an aggregate amount
outstanding at any time not to exceed such Lender's 364-Day Line of Credit
Commitment. Subject to the terms and conditions contained in this Agreement, the
Borrower shall be entitled to borrow, repay and reborrow 364-Day Loans;
provided, however, that the Borrower may neither borrow nor reborrow should
-------- -------
there exist a Default or an Event of Default. Additionally, each 364-Day Loan
shall be in an aggregate amount of $1,000,000 or integral multiples of $100,000
in excess thereof.
(c) Seasonal Line of Credit Commitment. Subject to and upon the terms and
----------------------------------
conditions herein set forth, each Lender severally establishes in favor of the
Borrower from the period beginning on December 1, 1995 up to but excluding the
Seasonal Loan Maturity Date, its Seasonal Line of Credit Commitment. Each
Lender, subject to and upon the terms and conditions set forth herein, from time
to time, agrees to make to the Borrower Seasonal Loans in an aggregate amount
outstanding at any time not to exceed such Lender's Seasonal Line of Credit
Commitment. Subject to the terms and conditions contained in this Agreement, the
Borrower shall be entitled to borrow, repay and reborrow Seasonal Loans;
provided, however, that the Borrower may neither borrow nor reborrow should
-------- -------
there exist a Default or an Event of Default. Additionally, each Seasonal Loan
shall be in an aggregate amount of $1,000,000 or integral multiples of $100,000
in excess thereof.
Section 2.2. Bid Rate Loans. At any time prior to the termination of all
--------------
of the Commitments the Borrower may request that the Lenders make offers to
provide Bid Rate Loans, provided, however, that no Lender may offer to provide
-------- -------
Bid Rate Loans in excess of its applicable unused Commitment(s). The Lenders
may, but shall have no obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers all as provided for in
Section 3.6 of this Agreement; provided, however, that the Borrower may not
-------- -------
request any Bid Rate Loans should there exist a Default or an Event of Default.
Additionally, each Bid Rate Loan shall be in an aggregate amount of $1,000,000
or integral multiples of $100,000 in excess thereof.
-17-
Section 2.3. Letters of Credit. Subject to and upon the terms and
-----------------
conditions set forth in this Agreement, from the Closing Date to but excluding
the Revolving Loan Maturity Date, Trust Company shall issue Letters of Credit
for the account of the Bor rower up to the Letter of Credit Sublimit, and each
Non-Issuing Lender shall thereupon be deemed to have purchased a participation
in each such Letter of Credit as provided in Section 3.11; provided, however,
-------- -------
that the Borrower may not request any Letter of Credit should there exist a
Default or an Event of Default.
ARTICLE 3.
----------
GENERAL LOAN AND LETTER OF CREDIT TERMS
---------------------------------------
Section 3.1. Notes; Repayment of Principal.
-----------------------------
(a) The Borrower's obligations to pay the principal of, and interest on,
(i) the Syndicated Loans to each Lender shall be evidenced by the records of
the Agent and such Lender and by Syndicated Notes payable to such Lender and
(ii) the Bid Rate Loans to each Lender shall be evidenced by the records of the
Agent and such Lender and by a Bid Rate Note payable to such Lender.
(b) All outstanding principal amounts under the Loans shall be due and
payable in full on the earlier of (i) applicable Maturity Date or (ii) an
earlier date if the Loans are accelerated in accordance with the terms and
conditions of Article 8 of this Agreement.
Section 3.2. Amount Limitations. Notwithstanding any other term of this
------------------
Agreement or any other Loan Document to the contrary, at no time may:
(a) the aggregate amount of all outstanding Revolving Loans together with
the amount of all Letter of Credit Liabilities exceed the aggregate amount of
the Revolving Credit Commitments; or
(b) the aggregate amount of all outstanding 364-Day Loans exceed the
aggregate amount of the 364-Day Line of Credit Commitments; or
(c) the aggregate amount of all outstanding Seasonal Loans exceed the
aggregate amount of the Seasonal Line of Credit Commitments; or
-18-
(d) the aggregate amount of all Letter of Credit Liabilities exceed the
Letter of Credit Sublimit; or
(e) the aggregate of (i) all Bid Rate Loans, (ii) all Syndicated Loans and
(iii) all Letter of Credit Liabilities exceed the aggregate amount of the
Commitments outstanding at that time.
Section 3.3. Reduction of Commitments.
------------------------
(a) Upon at least three Business Days' prior written notice to the Agent,
the Borrower shall have the right, without premium or penalty, to terminate the
Commitments, in part or in whole, provided that (i) any such termination shall
apply to proportionately and permanently reduce the Commitments of each of the
Lenders, (ii) any partial termination pursuant to this Section 3.3 shall be in
an amount of at least $5,000,000 and integral multiples of $1,000,000 in excess
thereof, and (iii) no such reduction shall be permitted without payment of all
costs required to be paid hereunder with respect to a prepayment.
(b) If the aggregate outstanding amount of the Loans exceeds the amount of
the Commitments as so reduced, or if any of the limits in Section 3.2 are
exceeded, the Borrower shall immediately repay the Loans by an amount equal to
such excess, together with all accrued but unpaid interest on such excess amount
and any amounts due under Section 3.16 of this Agreement.
Section 3.4. Extension of Revolving Loan Maturity Date. At any time
-----------------------------------------
prior to the date which is 90 days before either the first or second anniversary
of the Closing Date but not earlier than the day which is 120 days before such
date, the Borrower may request that the Lenders extend the Revolving Loan
Maturity Date for one additional year by giving written notice to the Agent.
Within three Business Days from the Agent's receipt of such notice from the
Borrower, the Agent shall notify each Lender of the requested extension. Within
45 days after receipt of notice from the Agent, each Lender shall notify the
Agent of its decision with respect to such extension (which decision is at the
option of the Lenders in their sole and absolute discretion). Not less than 30
days prior to the applicable anniversary of the Closing Date, the Agent shall
notify the Borrower of the decision of the Lenders with respect to such
extension. If all of the Lenders agree to an extension then the Revolving Loan
Maturity Date shall be extended by an additional year, provided, however, that
-------- -------
notwithstanding anything else contained in this Agreement to the contrary, the
Revolving Loan Maturity Date may only be extended for a total of two additional
one year periods. If any Lender elects not to extend the Revolving Period,
either (i) the Revolving Loan Maturity Date shall not be extended and the
Revolving Credit Commitments shall expire on the
-19-
Revolving Loan Maturity Date or (ii) such Lender may assign its rights and
obligations under this Agreement and under such Lender's Revolving Credit Note
to an Eligible Assignee approved in writing by the Borrower (so long as no
Default or Event of Default exists hereunder) and by the Agent. Notwithstanding
anything to the contrary contained in the foregoing part of this Section 3.4,
the Lenders shall have no obligation to extend the Revolving Loan Maturity Date
and may extend the Revolving Loan Maturity Date on such terms and conditions as
the Lenders shall, in their sole and absolute discretion, determine.
Section 3.5. Interest Rates and Interest Periods. (a) Each Syndicated
-----------------------------------
Loan shall, at the option of the Borrower, be made or continued as, or converted
into, part of one or more Borrowings that shall consist entirely of Base Rate
Advances or Eurodollar Advances.
(b) There shall be no more than eight Eurodollar Borrowings outstanding
at any one time.
Section 3.6. Funding Notices.
---------------
(a) (i) Whenever the Borrower desires to make a Base Rate Borrowing or a
Eurodollar Rate Borrowing (other than one resulting from a continuation or
conversion pursuant to Section 3.6(b)), it shall give the Agent prior written
notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a
"Notice of Borrowing"), such Notice of Borrowing to be given prior to 11:00 A.M.
-------------------
(Atlanta, Georgia time) (x) one Business Day prior to the requested date of such
Borrowing in the case of Base Rate Advances, and (y) three Business Days prior
to the requested date of such Borrowing in the case of Eurodollar Advances.
Notices received after 11:00 A.M. (Atlanta, Georgia time) shall be deemed
received on the next Business Day. Each Notice of Borrowing shall be
irrevocable, shall be substantially in the form of Exhibit D attached to this
---------
Agreement, and shall specify (A) the aggregate principal amount of the
Borrowing, (B) the date of Borrowing (which shall be a Business Day), (C)
whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances
and, in the case of Eurodollar Advances, the Interest Period to be applicable
thereto, and (D) whether the Borrowing is to be advanced under the Revolving
Loan Commitment, the Seasonal Loan Commitment, or the 364-Day Loan Commitment
(or a combination thereof).
(ii) Whenever the Borrower desires to make a Bid Rate Borrowing, it
shall give the Agent and each Lender notice that the
-20-
Lenders are requested to provide informational quotes on Bid Rates (a "Bid Rate
--------
Request"), such Bid Rate Request must be given prior to 10:00 A.M. (Atlanta,
-------
Georgia time) on the requested date of such Borrowing. No Bid Rate Request
shall be given within 5 Business Days of the giving of any other Bid Rate
Request. Notices received after 10:00 A.M. (Atlanta, Georgia time) shall be
deemed received on the next Business Day. Each Bid Rate Request shall be
substantially in the form of Exhibit E attached to this Agreement, and shall
---------
specify (A) the aggregate principal amount requested, (B) the date of the
Borrowing (which shall be a Business Day), (C) the relevant Interest Periods
(which shall not exceed 10 in a single Bid Rate Request), and (D) whether the
Borrowing is to be advanced under the Revolving Credit Commitment, the Seasonal
Line of Credit Commitment or the 364-Day Line of Credit Commitment (or a
combination thereof). Each Lender in its discretion may, but shall not be
obligated to, submit quotes to the Borrower in connection with such request;
provided however, that notwithstanding anything to the contrary contained in
----------------
this Agreement no Lender may submit a quote to make a Loan in excess of its
applicable unutilized Commitment. No later than 11:00 A.M. (Atlanta, Georgia
time) on the date of the requested Borrowing, any Lender which desires to submit
quotes to the Borrower in connection with a Bid Rate Request must provide the
Borrower with a written bid in substantially the form of Exhibit F attached to
---------
this Agreement which shall specify (x) the amount of principal offered, (y) the
rate of interest (expressed on a per annum basis) and (z) the Interest Period (a
"Bid Rate Quote"). The Borrower shall then be entitled, in its sole discretion,
--------------
to elect to incur all or any part of the Bid Rate Loans offered by one or more
of the Lenders in their Bid Rate Quotes. No later than 1:00 P.M. (Atlanta,
Georgia time) on the date of a requested Borrowing, the Borrower shall provide
the Agent and each Lender which submitted a Bid Rate Quote with a notice
indicating which Bid Rate Quotes, if any, it desires to accept in substantially
the form of Exhibit G attached to this Agreement (a "Bid Rate Acceptance"). If
--------- -------------------
the Borrower does not submit a Bid Rate Acceptance by the deadline of 1:00 P.M.
(Atlanta, Georgia time), it shall be deemed to have rejected all of the Bid Rate
Quotes. The Bid Rate Loans incurred by the Borrower in connection with such a
request for quotes shall not exceed, with respect to each Lender then providing
Bid Rate Quotes, (i) the then unutilized Commitment of such Lender with respect
to the requested Loan, and (ii) the amount bid by such Lender in connection with
such Lender's Bid Rate Quote.
(b) At the end of an Interest Period, if the Borrower desires to continue
outstanding a Borrowing consisting of Eurodollar Advances for a new Interest
Period or to convert a Borrowing consisting of Bid Rate Advances to Eurodollar
Advances, it shall give the Agent at least three Business Days' prior written
notice
-21-
of each such Borrowing to be continued or converted as Eurodollar Advances.
Such notice (a "Notice of Continuation/Conversion") shall be given to the Agent
---------------------------------
prior to 11:00 A.M. (Atlanta, Georgia time) on the date specified. Each such
Notice of Continuation/Conversion shall be irrevocable, shall be in the form of
Exhibit H attached to this Agreement, and shall specify (i) the aggregate
---------
principal amount of the Advances to be continued or converted, (ii) the date of
such continuation or conversion, (iii) the specific Advances to be continued or
converted, and (iv) the Interest Period applicable thereto. If, upon the ex
piration of any Interest Period in respect of any Borrowing, the Borrower shall
have failed to deliver a Notice of Continuation/Conversion (or a Notice of
Continuation/Conversion was incomplete), then the Borrower shall be deemed to
have elected to convert such Borrowing to a Borrowing consisting of Base Rate
Advances. So long as the Borrower has knowledge that any Default or Event of
Default shall have occurred and be continuing, no Borrowing may be continued as
or converted to (upon expiration of the current Interest Period) Eurodollar
Advances unless the Agent and each of the Lenders shall have otherwise consented
in writing. If the Borrower has complied with the terms of this subsection (b)
then the Advances identified in the Notice of Continuation/Conversion shall be
continued or converted at the applicable interest rate based on LIBOR for the
relevant Interest Period.
(c) The Borrower may at any time convert a Base Rate Borrowing to a
Eurodollar Borrowing; provided, however, that the Borrower shall give the Agent
-------- -------
a Notice of Continuation/Conversion three Business Days prior to such a
conversion. In each case such Notice of Continuation/Conversion shall specify
the Interest Period selected by the Borrower for such Borrowing and the specific
Advances to be converted.
(d) Without in any way limiting the Borrower's obligation to confirm in
writing any telephonic notice, the Agent and the Lenders may act without
liability upon the basis of telephonic notice believed by the Agent or the
Lender in good faith to be from the Borrower prior to receipt of written
confirmation. In each such case, the Borrower hereby waives the right to
dispute the Agent's and the Lender's record of the terms of such telephonic
notice.
(e) The Agent shall promptly give each Lender notice by tele phone
(confirmed in writing) or by telecopy or facsimile transmission of the matters
covered by the notices given to the Agent pursuant to this Section 3.6.
-22-
Section 3.7. Disbursement of Funds.
---------------------
(a) With respect to any Syndicated Loan, no later than 12:00 Noon
(Atlanta, Georgia time) on the date of each Borrowing pursuant to the
Commitments (other than one resulting from a continuation or conversion pursuant
to Section 3.6(b) or (c)), each Lender will make available its Pro Rata Share of
the amount of such Borrowing in immediately available funds at the Payment
Office of the Agent. The Agent will make available to the Borrower the
aggregate of the amounts (if any) so made available by the Lenders to the Agent
in a timely manner by crediting such amounts to the Borrower's demand deposit
account maintained with the Agent or at the Borrower's op tion, by effecting a
wire transfer of such amounts to the Borrower's account specified by the
Borrower, by the close of business on such Business Day. In the event that the
Lenders do not make such amounts available to the Agent by the time prescribed
above, but such amount is received later that day, such amount may be credited
to the Borrower in the manner described in the preceding sentence on the next
Business Day (with interest on such amount to begin accruing hereunder on such
next Business Day).
(b) With respect to any Bid Rate Loan, no later than 2:30 P.M. (Atlanta,
Georgia time) on the date of each Bid Rate Loan, each Lender participating in
such Bid Rate Loan will make available to the Borrower such Lender's share of
the amount of such Bid Rate Loan in immediately available funds by effecting a
wire transfer of such amounts to the Borrower's account specified by the
Borrower no later than the close of business on such Business Day.
(c) Unless the Agent shall have been notified by any Lender prior to the
date of a Borrowing which constitutes a Syndicated Loan that such Lender does
not intend to make available to the Agent such Lender's portion of the Borrowing
which constitutes a Syndicated Loan to be made on such date, the Agent may
assume that such Lender has made such amount available to the Agent on such date
and the Agent may make available to the Borrower a cor responding amount. If
such corresponding amount is not in fact made available to the Agent by such
Lender on the date of such Borrowing, the Agent shall be entitled to recover
such corresponding amount on demand from such Lender together with interest at
the Federal Funds Rate. If such Lender does not pay such corresponding amount
forthwith upon the Agent's demand therefor, the Agent shall promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding amount to
the Agent together with interest at the rate specified for the Bor rowing which
includes such amount paid and any amounts due under Section 3.16 hereof.
Nothing in this subsection shall be deemed to relieve any Lender from its
obligation to fund its Commitments or
-23-
its Bid Rate Advances hereunder or to prejudice any rights which the Borrower
may have against any Lender as a result of any default by such Lender hereunder.
(d) All Base Rate Borrowings and all Eurodollar Borrowings under the
Commitments shall be loaned by the Lenders on the basis of their Pro Rata Share
of the relevant Commitments. No Lender shall be responsible for any default by
any other Lender in its obligations hereunder, and each Lender shall be
obligated to make the Loans provided to be made by it hereunder, regardless of
the failure of any other Lender to fund its Commitment or its Bid Rate Advances
hereunder.
Section 3.8. Interest.
--------
(a) The Borrower agrees to pay interest in respect of all unpaid principal
amounts of the Syndicated Loans from the respective dates such principal amounts
were advanced to maturity (whether by acceleration, notice of prepayment or
otherwise) at rates per annum (on the basis of a 360-day year) equal to the
applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in effect from time
to time; and
(ii) For Eurodollar Advances--LIBOR plus the Applicable Percentage
----
during the applicable Interest Period.
(b) The Borrower agrees to pay interest in respect of all unpaid principal
amounts of the Bid Rate Loans made to the Borrower from the respective dates
such principal amounts were advanced to maturity (whether by acceleration,
notice of prepayment or otherwise) at times and at rates per annum equal to the
applicable rates agreed upon between the Borrower and the respective Lender and
evidenced by the Bid Rate Acceptance.
(c) Overdue principal and, to the extent not prohibited by applicable law,
overdue interest, in respect of any Loans and all other overdue amounts owing
hereunder, shall bear interest from each date that such amounts are overdue:
(i) in the case of overdue principal and interest with respect to all
Loans outstanding as Fixed Rate Advances, at the rate otherwise applicable
for the then-current Interest Period plus an additional two percent (2.0%)
----
per annum;
-24-
thereafter at the rate in effect for Base Rate Advances plus an additional
----
two percent (2.0%) per annum; and
(ii) in the case of overdue principal and interest with respect to all
other Loans outstanding as Base Rate Advances, and all other obligations
hereunder, at a rate equal to the applicable Base Rate plus an additional
two percent (2.0%) per annum;
provided that no Loan shall bear interest after maturity (whether by non-payment
--------
at scheduled due date, acceleration, notice of prepayment or otherwise) at a
rate per annum less than two percent (2.0%) per annum in excess of the rate of
interest applicable thereto at maturity.
(d) Interest on each Loan shall accrue from and including the date of such
Loan to but excluding the date of any repayment thereof; provided that, if a
--------
Loan is repaid on the same day made, one day's interest shall be paid on such
Loan. Interest on all outstanding Base Rate Advances shall be payable quarterly
in arrears on the last calendar day of each calendar quarter in each year.
Interest on all outstanding Eurodollar Advances and Bid Rate Advances shall be
payable on the last day of each Interest Period applicable thereto, and, in the
case of any Interest Period in excess of 90 days (in the case of Bid Rate
Advances) or three months (in the case of Eurodollar Advances), on each day
which occurs every 90 days or 3 months, as the case may be, after the initial
date of such Interest Period. Interest on all Loans shall be payable on any
conversion of any Advances comprising such Loans into Advances of another type,
prepayment (on the amount prepaid), at maturity (whether by acceleration, notice
of prepayment or otherwise) and, after maturity, on demand.
(e) The Agent, upon determining LIBOR for any Interest Period, shall
promptly notify the Borrower and the other Lenders. Any such determination
shall, absent manifest error, be final, conclusive and binding for all purposes.
A Lender submitting a Bid Rate Quote has no obligation to notify any other
Lender (except the Agent) of the interest rates charged to the Borrower.
Section 3.9. Fees.
----
(a) The Borrower shall pay the Agent, for the account of and distribution
of the respective Pro Rata Share to each Lender, a facility fee as follows:
-25-
(i) with respect to the Revolving Loan Commitment, an amount equal to
the Applicable Percentage multiplied by the Revolving Loan Commitment;
(ii) with respect to the 364-Day Line of Credit Commitment, an amount
equal to 0.10% per annum multiplied by the 364-Day Line of Credit
Commitment; and
(iii) with respect to the Seasonal Line of Credit Commitment, an
amount equal to 0.10% per annum multiplied by the Seasonal Line of Credit
Commitment.
(b) The Borrower shall pay the Agent, for the account of and distribution
of the respective Pro Rata Share to each Lender, a commitment fee, with respect
to the Revolving Loan Commitment, in an amount equal to the Applicable
Percentage multiplied by the average daily unused portion of the Revolving Loan
-------------
Commitment.
(c) The Borrower shall pay the Agent the fees outlined in the Fee
Letter.
(d) All fees described in this Agreement, including, without limitation,
the fees described in this Section 3.9, shall be payable in arrears on the last
day of each fiscal quarter, except for the fees described in the Fee Letter
which shall be payable in accordance with the terms described therein.
Section 3.10. Voluntary Prepayments of Borrowings.
-----------------------------------
(a) The Borrower may, at its option, prepay Borrowings in whole or in
part, in amounts aggregating $1,000,000 or any greater amount in integral
multiples of $100,000. Those Borrowings may be prepaid by paying the principal
amount to be prepaid, together with interest accrued and unpaid thereon to the
date of prepayment, and all compensation payments pursuant to Section 3.16 if
such prepayment is made on a date other than the last day of an Interest Period
applicable thereto. Each such optional prepayment shall be applied in
accordance with Section 3.10(c) below.
(b) The Borrower shall give written notice to the Agent of any intended
prepayment of the Loans (i) not less than one Business Day prior to any
prepayment of Base Rate Advances, and (ii) not less than three Business Days
prior to any prepayment of Eurodollar Advances or Bid Rate Advances. Such
notice, once given, shall be
-26-
irrevocable. Upon receipt of such notice of prepayment pursuant to the first
sentence of this paragraph (b), the Agent shall promptly notify each Lender of
the contents of such notice and of such Lender's share of such prepayment.
(c) The Borrower, when providing notice of prepayment pursu ant to Section
3.10(b) shall designate the specific Borrowing or Borrowings which are to be
prepaid, provided that (i) if any prepayment of Fixed Rate Advances made
pursuant to a single Borrowing of the Revolving Loans, 364-Day Loans, or
Seasonal Loans shall reduce the outstanding Advances made pursuant to such
Borrowing to an amount less than $1,000,000, such Borrowing shall immediately be
converted into Base Rate Advances; and (ii) each prepayment made pursuant to a
single Borrowing shall be applied pro rata among the Loans comprising such
Borrowing, unless such prepayment is a prepayment of a Bid Rate Loan in which
case such prepayment shall be applied only to the affected Lenders. All
voluntary prepayments shall be applied to the payment of any unpaid interest and
other charges or fees before application to principal.
Section 3.11 Letters of Credit. (a) Maturity. Each Letter of Credit
----------------- --------
shall have an expiration date not later than 10 Business Days prior to the
Revolving Loan Maturity Date. Letters of Credit may be issued for general
corporate purpose of the Borrower in the ordinary course of business, but in no
event for the support, security or payment of any Funded Debt of the Borrower or
any other Person.
(b) Manner of Issuance. The Borrower shall forward a completed Letter of
------------------
Credit Application in the appropriate form to the Agent prior to 1:00 P.M.
(Atlanta, Georgia time) at least one Business Day before the requested date of
issuance of a Letter of Credit, and the Agent shall promptly give each Non-
Issuing Lender written or telephonic notice of the contents of such Letter of
Credit Application. Provided that the Borrower has complied with the conditions
of this Section 3.11, Trust Company shall issue the requested Letter of Credit
on the requested date for the benefit of the requested Beneficiary. Upon
request, Trust Company will also provide a copy of any issued Letter of Credit
to the Borrower.
(c) Fees.
----
(i) Standby Letters of Credit. With respect to each Letter of Credit,
--------------------------
the Borrower shall pay Trust Company for the account of each Lender,
quarterly in arrears with respect to fees accrued for such quarter, a fee
equal to the Applicable Percentage per annum (based on a year of 360 days
and computed for the actual number of days elapsed) on such Lender's Pro
-27-
Rata Share of the daily average aggregate amount available to be drawn under
outstanding Letters of Credit during such quarter.
(ii) Administrative Fees. In addition to the foregoing fees payable to
--------------------
the Lenders, the Borrower shall pay to Trust Company such other
administrative fees as Trust Company customarily charges in respect of
standby letter of credit transactions, together with all telecommunication
fees and expenses incurred by Trust Company in connection with the issuance
or honoring of any Letter of Credit issued for the Borrower's account.
(d) Drawings Under Letters of Credit.
--------------------------------
(i) Upon receipt of any draft upon, or other notice of drawing under, a
Letter of Credit, the Agent shall promptly give the Borrower and each Non-
Issuing Lender written or telephonic notice of the contents of such draft,
of the Letter of Credit against which it is drawn and of the date upon which
Trust Company proposes to honor such draft.
(ii) Subject to the following sentence, the Borrower shall pay to Trust
Company for the ratable account of the Lenders the amount of each authorized
drawing under a Letter of Credit on the date that the Borrower receives
notice from Trust Company of the payment of such drawing. If the Borrower
does not otherwise pay the amount of any draw when due pursuant to the
preceding sentence, the amount thereof shall be deemed to be a Base Rate
Advance under the Revolving Loan Commitment effective as of the date due,
without the requirement to comply with any other provisions of this
Agreement relating to the making of Advances.
(e) Additional Provisions.
---------------------
(i) Limitation on Trust Company's Duty to Issue. Trust Company shall
have no obligation to issue any Letter of Credit if the aggregate undrawn
face amount of Letters of Credit outstanding, after giving effect to the
issuance of such Letter of Credit, would exceed the Letter of Credit
Sublimit or any limit imposed on such Letter of Credit would otherwise cause
a violation of, any applicable law or any regulatory directive,
interpretation or request to which Trust Company or such Non-Issuing Lender
is subject.
(ii) Borrower's Obligation Absolute. Without limitation
------------------------------
-28-
of or prejudice to any right or remedy available to the Borrower, the obligation
of the Borrower to reimburse Trust Company, for the account of the Lenders, for
each authorized drawing under a Letter of Credit shall be irrevocable, shall not
be subject to any qualification or exception whatsoever and shall be binding in
accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents;
(B) the existence of any claim, set-off, defense or right which
the Borrower may have at any time against a beneficiary of any Letter
of Credit or any transferee of any Letter of Credit (or any person for
whom any such transferee may be acting), Trust Company, the Non-
Issuing Lenders or any other Person, whether in connection with this
Agreement, or any Letter of Credit, the transactions contemplated
herein or any unrelated transactions (other than the defense of
payment in accordance with this Agreement or a defense based on the
negligence or willful misconduct of Trust Company or the Non-Issuing
Lenders;)
(C) any draft, certificate or any other document presented under
any Letter of Credit (but not including the Letter of Credit itself)
proving to be forged, fraudulent, invalid or insufficient (unless, in
each case, manifestly so) in any respect or any statement therein
being untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the
performance or observance of any of the terms of this Agreement or the
other Loan Documents;
(E) any failure of Trust Company to provide notice to the
Borrower of any drawing under any Letter of Credit; or
(F) the occurrence or continuance of any Default or Event of
Default.
(f) Limitation of Liability With Respect To Letters of Credit.
----------------------------------------------------------
(i) As among the Borrower, the Non-Issuing Lenders and Trust Company,
the Borrower assumes all risks of the acts and omissions of, or misuse of
any Letter of Credit by, the beneficiaries of such Letter of Credit. Without
limiting the
-29-
foregoing, Trust Company and the Non-Issuing Lenders shall not be
responsible for:
(A) the validity, accuracy, genuineness or legal effect of any
draft, demand, application or other documents submitted by any Person
in accordance with the terms of any Letter of Credit (but not including
the Letter of Credit itself), even if such document should in fact
prove to be in any and all respects invalid, insufficient, inaccurate,
fraudulent or forged;
(B) the validity, genuineness or sufficiency of any instruments
transferring or assigning or purporting to transfer or assign a Letter
of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part which may prove to be invalid or ineffective for any
reason;
(C) failure of the beneficiary of a Letter of Credit to comply
fully with the conditions required in order to draw upon such Letter of
Credit to the extent that the documents presented in connection with a
drawing manifestly comply with the terms of the Letter of Credit;
(D) the misapplication by the beneficiary of a Letter of Credit
of the proceeds of any drawing under such Letter of Credit; or
(E) any consequences arising from causes beyond the control of
Trust Company or the Non-Issuing Lenders, including, without
limitation, any act or omission, rightfully or wrongfully of any
present or future governmental authority.
None of the above circumstances shall affect, impair or prevent the vesting of
any of Trust Company's and the Non-Issuing Lenders' rights or powers under this
Section.
(ii) In furtherance and extension, and not in limitation, of the
specified provisions set forth above, any action taken or omitted by Trust
Company under or in connection with any Letter of Credit or any related
documents, if taken or omitted in accordance with the Uniform Customs and
Practice for Documentary Credit (1994 Revision, Publication No. 500 of the
International Chamber of Commerce No. 500) (or any successor publication)
and the Uniform Commercial Code, as applicable, shall not expose Trust
Company or any Non-Issuing Lender to
-30-
any liability to the Borrower or relieve the Borrower of any of its
obligations hereunder.
(g) Participation.
-------------
(i) Simultaneously with the issuance by Trust Company of any Letter of
Credit, each Non-Issuing Lender shall be deemed to have irrevocably and
unconditionally purchased and received from Trust Company, without recourse
or warranty, an undivided interest and participation in such Letter of
Credit, (including, without limitation, all obligations of the Borrower with
respect thereto), equal to such Non-Issuing Lender's Pro Rata Share of such
Letter of Credit and Trust Company shall be deemed to have purchased a
participation in an amount equal to its retained interest in such Letter of
Credit equal to its Pro Rata Share. Following a request from any Lender,
Trust Company shall within a reasonable period of time provide such Lender
with a participation certificate which certificate shall indicate the total
amount of such Lender's participation in such Letter of Credit.
(ii) Each Non-Issuing Lender hereby agrees that it shall pay to Trust
Company, prior to 1:00 P.M. (Atlanta, Georgia time) on the date of payment
of each Letter of Credit drawing, as the case may be, such Non-Issuing
Lender's Pro Rata Share of such Letter of Credit drawing. Should the
Borrower reimburse Trust Company in full any Letter of Credit drawing on the
date thereof, any amount paid by a Non-Issuing Lender to Trust Company
pursuant to this Section 3.11 with respect to such drawing shall, to the
extent of such Non-Issuing Lender's Pro Rata Share of such payment by the
Borrower, promptly be refunded by Trust Company to such Non-Issuing Lender.
(iii) The obligation of each Non-Issuing Lender to pay to Trust
Company its Pro Rata Share of each Letter of Credit drawing, shall be
irrevocable and unconditional, shall not be subject to any qualification or
exception whatsoever and shall be binding in accordance with the terms and
conditions of this Agreement under all circum stances, including, without
limitation, the following circumstances:
(A) any lack of validity or enforceability of this Agreement;
(B) the existence of any claim, set-off, defense or other right
which the Borrower or any Lender may have at
-31-
any time against the other, the Issuing Lender, any Non-Issuing Lender
or any other Person, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transactions;
(C) any draft or any other document presented under this
Agreement proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(D) the surrender or impairment of any security for the
performance or observance of any of the terms of this Agreement;
(E) the occurrence or continuance of any Default.
(iv) If any Non-Issuing Lender shall fail to pay the amount of its
participation in a Letter of Credit drawing on the date such amount is due
in accordance with subparagraph (b) above, Trust Company shall be deemed to
have advanced funds on behalf of such Non-Issuing Lender. Each such advance
shall be secured by such Non-Issuing Lender's participation interest, and
Trust Company shall be subrogated to such Non-Issuing Lender's rights
hereunder in respect thereof. Such advance may be repaid by application by
Trust Company or any payment which such Non-Issuing Lender is otherwise
entitled to receive under this Agreement. Any amount not paid by such Non-
Issuing Lender to Trust Company hereunder shall bear interest for the first
day such amount was not paid at the Federal Funds Rate and for each day
thereafter from the day after such payment was due until such payment shall
be paid in full at a rate per annum equal to the Base Rate plus an
additional two percent (2%).
(h) Conflict. Notwithstanding anything to the contrary contained
--------
herein, in any Letter of Credit or any Letter of Credit Application, in the
event of conflicting terms or provisions between this Agreement and any
Letter of Credit or any Letter of Credit Application, the terms and
provisions of this Agreement shall control.
Section 3.12. Payments, etc.
-------------
(a) Except as otherwise specifically provided herein, all payments under
this Agreement and the other Loan Documents shall be made without defense, set-
off or counterclaim to the Agent, not
-32-
later than 11:00 A.M. (Atlanta, Georgia time) on the date when due and shall be
made in Dollars in immediately available funds at the Agent's Payment Office.
(b) (i) All such payments shall be made free and clear of and without
deduction or withholding for any Taxes in respect of this Agreement, the Notes
or other Loan Documents, or any payments of principal, interest, fees or other
amounts payable hereunder or thereunder (but excluding any Taxes imposed on the
overall net income of the Lenders pursuant to the laws of the jurisdiction in
which the principal executive office or appropriate Lending Office of such
Lender is located). If any Taxes are so levied or imposed, the Borrower agrees
(A) to pay the full amount of such Taxes, and such additional amounts as may be
necessary so that every net payment of all amounts due hereunder and under the
Notes and other Loan Documents, after withholding or deduction for or on account
of any such Taxes (including additional sums payable under this Agreement), will
not be less than the full amount provided for herein had no such deduction or
withholding been required, (B) to make such withholding or deduction and (C) to
pay the full amount deducted to the relevant authority in accordance with
applicable law. The Borrower will furnish to the Agent and each Lender, within
30 days after the date the payment of any Taxes is due pursuant to applicable
law, certified copies of tax receipts evidencing such payment by the Borrower.
The Borrower will indemnify and hold harmless the Agent and each Lender and
reimburse the Agent and each Lender upon written request for the amount of any
Taxes so levied or imposed and paid by the Agent or the Lender and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes were correctly or illegally asserted. A
certificate as to the amount of such payment by such Lender or the Agent, absent
manifest error, shall be final, conclusive and binding for all purposes.
(ii) Each Lender that is organized under the laws of any jurisdiction
other than the United States of America or any State thereof (including the
District of Columbia) agrees to furnish to the Borrower and the Agent, prior
to the time it becomes a Lender hereunder, two copies of either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form
1001 or any successor forms thereto (wherein such Lender claims entitlement
to complete exemption from or reduced rate of U.S. Federal withholding tax
on interest paid by the Borrower hereunder) and to provide to the Borrower
and the Agent a new Form 4224 or Form 1001 or any successor forms thereto if
any previously delivered form is found to be incomplete or incorrect in any
material respect or upon the obsolescence of any previously delivered form;
provided,
--------
-33-
however, that no Lender shall be required to furnish a form under this
-------
paragraph (ii) if it is not entitled to claim an exemption from or a reduced
rate of withholding under applicable law. A Lender that is not entitled to
claim an exemption from or a reduced rate of withholding under applicable
law, promptly upon written request of the Borrower, shall so inform the
Borrower in writing.
(c) Whenever any payment to be made hereunder or under any Note shall be
stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest thereon shall be payable at the applicable rate
during such extension.
(d) On other than Bid Rate Loans, which shall be negotiated from time to
time, all computations of interest and fees shall be made on the basis of a year
of 360 days for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or fees are
payable (to the extent computed on the basis of days elapsed), except that
interest on Base Rate Advances shall be computed on the basis of a year of 360
days for the actual number of days. Interest on Base Rate Advances shall be
calculated based on the Base Rate from and including the date of such Loan to
but excluding the date of the repayment or conversion thereof. Interest on
Eurodollar Advances shall be calculated as to each Interest Period from and
including the first day thereof to but excluding the last day thereof. Each
determination by the Agent or the Bid Lender of an interest rate or fee
hereunder shall be made in good faith and, except for manifest error, shall be
final, conclusive and binding for all purposes.
(e) Payment by the Borrower to the Agent in accordance with the terms of
this Agreement shall, as to the Borrower, constitute payment to the Lenders
under this Agreement.
Section 3.13. Interest Rate Not Ascertainable, etc. In the event that the
------------------------------------
Agent, in the case of LIBOR, shall have determined (which determination shall be
made in good faith and, absent mani fest error, shall be final, conclusive and
binding upon all par ties) that on any date for determining LIBOR for any
Interest Period, by reason of any changes arising after the date of this
Agreement affecting the London interbank market, or the Agent's position in such
markets, adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of LIBOR then, and in
any such event, the Agent
-34-
shall forthwith give notice to the Borrower and to the Lenders of such
determination and a summary of the basis for such determination. Until the
Agent notifies the Borrower that the circumstances giving rise to the suspension
described herein no longer exist, the obligations of the Lenders to make or
permit portions of the Revolving Loans, 364-Day Loans, or Seasonal Loans to
remain outstanding past the last day of the then current Interest Periods as
Eurodollar Advances, as the case may be, shall be suspended, and such affected
Advances shall bear the same interest as Base Rate Advances.
Section 3.14. Illegality.
----------
(a) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error, shall be
final, conclusive and binding upon all parties) at any time that the making or
continuance of any Eurodollar Advance has become unlawful by compliance by such
Lender in good faith with any applicable law, governmental rule, regulation,
guideline or order (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful), then, in any such event, the
Lender shall give prompt notice (by telephone confirmed in writing) to the
Borrower and to the Agent of such determination and a summary of the basis for
such determination (which notice the Agent shall promptly transmit to the other
Lenders).
(b) Upon the giving of the notice to the Borrower referred to in
subsection (a) above, (i) the Borrower's right to request and such Lender's
obligation to make Eurodollar Advances as the case may be, shall be immediately
suspended, and such Lender shall make an Advance as part of the requested
Borrowing of Eurodollar Advances as the case may be, as a Base Rate Advance,
provided, the Borrower does not negotiate a Bid Rate Loan, which Base Rate
Advance shall, for all other purposes, be considered part of such Borrowing, and
(ii) if any affected Eurodollar Advances are then outstanding, the Borrower
shall immediately, or if permitted by applicable law, no later than the date
permitted thereby, upon at least one Business Day's written notice to the Agent
and the affected Lender, convert each such Advance into a Base Rate Advance,
provided that if more than one Lender is affected at any time, then all affected
Lenders must be treated the same pursuant to this Section 3.14(b).
Section 3.15. Increased Costs.
---------------
(a) If, by reason of (x) after the date hereof, the introduction of or any
change (including, without limitation, any change by way of imposition or
increase of reserve requirements) in or in the interpretation of any law or
regulation, or (y) the
-35-
compliance with any guideline or request from any central bank or other
governmental authority or quasi-governmental authority exercising control over
banks or financial institutions generally (whether or not having the force of
law):
(i) any Lender (or its applicable lending office) shall be subject to
any tax, duty or other charge with respect to its Fixed Rate Advances or its
obligation to make Fixed Rate Advances, or the basis of taxation of payments
to any Lender of the principal of or interest on its Fixed Rate Advances or
its obligation to make Fixed Rate Advances shall have changed (except for
changes in the tax on the overall net income of such Lender or its
applicable lending office imposed by the jurisdiction in which such Lender's
principal executive office or applicable lending office is located); or
(ii) any reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender's applicable lending office shall be
imposed or deemed applicable or any other condition affecting its Fixed Rate
Advances or its obligation to make Fixed Rate Advances shall be imposed on
any Lender or its applicable lending office or the London interbank market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Fixed Rate Advances
(except to the extent already included in the determination of the applicable
Bid Rate for Bid Rate Advances or the applicable LIBOR for Eurodollar Advances),
or there shall be a reduction in the amount received or receivable by such
Lender or its applicable lending office, then the Borrower shall from time to
time (subject, in the case of certain Taxes, to the applicable provisions of
Section 3.12(b)), upon written notice from and demand by such Lender on the
Borrower (with a copy of such notice and demand to the Agent), pay to the Agent
for the account of such Lender within five Business Days after the date of such
notice and demand, additional amounts sufficient to indemnify such Lender
against such increased cost. A certificate as to the amount of such increased
cost, submitted to the Borrower and the Agent by such Lender in good faith and
accompanied by a statement prepared by such Lender describing in reasonable
detail the basis for and calculation of such increased cost, shall, except for
manifest error, be final, conclusive and binding for all purposes.
-36-
(b) If any Lender shall advise the Agent that at any time, because of the
circumstances described in clauses (x) or (y) in Section 3.15(a) or any other
circumstances beyond such Lender's reasonable control arising after the date of
this Agreement affecting such Lender or the London interbank market or such
Lender's position in such market, the LIBOR or the Bid Rate, as the case may be,
as determined by the Agent, will not adequately and fairly reflect the cost to
such Lender of funding its Fixed Rate Advances, then, and in any such event:
(i) the Agent shall forthwith give notice to the Borrower and to the
other Lenders of such advice;
(ii) the Borrower's right to request and such Lender's obligation to
make or permit portions of the Loans to remain outstanding past the last
day of the then current Interest Periods as Bid Rate Advances or Eurodollar
Advances, as the case may be, shall be immediately suspended; and
(iii) such Lender shall make a Loan as part of the re quested
Borrowing of Bid Rate Advances or Eurodollar Advances, as the case may be,
as a Base Rate Advance, which such Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing.
Section 3.16. Funding Losses. The Borrower shall compensate each Lender,
--------------
upon its written request to the Borrower (which request shall set forth the
basis for requesting such amounts in reasonable detail and which request shall
be made in good faith and, absent manifest error, shall be final, conclusive and
binding upon all of the parties hereto), for all losses, expenses and li
abilities (including, without limitation, any interest paid by such Lender to
lenders of funds borrowed by it to make or carry its Fixed Rate Advances, in
either case to the extent not recovered by such Lender in connection with the
re-employment of such funds and including loss of anticipated profits), which
the Lender may sustain: (i) if for any reason (other than a default by such
Lender) a borrowing of, or conversion to or continuation of, Fixed Rate Advances
to the Borrower does not occur on the date specified therefor in a Notice of
Borrowing or Notice of Conversion/Continuation (whether or not withdrawn), (ii)
if any repayment (including mandatory prepayments and any conversions) of any
Fixed Rate Advances to the Borrower occurs on a date which is not the last day
of an Interest Period applicable thereto, or (iii), if, for any reason, the
Borrower defaults in its obligation to repay its Fixed Rate Advances when
required by the terms of this Agreement.
-37-
Section 3.17. Assumptions Concerning Funding of Fixed Rate Advances.
-----------------------------------------------------
Calculation of all amounts payable to a Lender under this Article 3
shall be made as though that Lender had actually funded its relevant Fixed Rate
Advances through the purchase of deposits in the relevant market bearing
interest at the rate applicable to such Fixed Rate Advances in an amount equal
to the amount of the Fixed Rate Advances and having a maturity comparable to the
relevant Interest Period and, in the case of Eurodollar Advances, through the
transfer of such Eurodollar Advances from an offshore office of that Lender to a
domestic office of that Lender in the United States of America; provided
--------
however, that each Lender may fund each of its Fixed Rate Advances in any manner
it sees fit and the foregoing assumption shall be used only for calculation of
amounts payable under this Article 3.
Section 3.18. Apportionment of Payments. Aggregate principal and interest
-------------------------
payments in respect of Loans and payments in respect of facility fees and
commitment fees shall be apportioned among all outstanding Commitments and Loans
to which such payments relate, proportionately to the Lenders' respective pro
rata portions of such Commitments and outstanding Loans. The Agent shall
promptly distribute to each Lender at its payment office set forth beside its
name on the appropriate signature page hereof or such other address as any
Lender may request its share of all such payments received by the Agent.
Section 3.19. Sharing of Payments, Etc. If any Lender shall obtain any
------------------------
payment or reduction (including, without limitation, any amounts received as
adequate protection of a deposit treated as cash collateral under the Bankruptcy
Code) of the Obligations (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) in excess of its pro rata portion of
payments or reductions on account of such obligations obtained by all the
Lenders, such Lender shall forthwith (i) notify each of the other Lenders and
the Agent of such receipt, and (ii) purchase from the other Lenders such
participations in the affected obligations as shall be necessary to cause such
purchasing Lender to share the excess payment or reduction, net of costs
incurred in connection therewith, ratably with each of them, provided that if
all or any portion of such excess payment or reduction is thereafter recovered
from such purchasing Lender or additional costs are incurred, the purchase shall
be rescinded and the purchase price restored to the extent of such recovery or
such additional costs, but without interest unless the Lender obligated to
return such funds is required to pay interest on such funds. The Borrower agrees
that any Lender so purchasing a participation from another Lender pursuant to
this Section 3.19 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of
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set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
Section 3.20. Capital Adequacy. Without limiting any other provision of
----------------
this Agreement, in the event that any Lender shall have determined that any law,
treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy not currently in effect or fully applicable as
of the Closing Date, or any change therein or in the interpretation or
application thereof after the Closing Date, or compliance by such Lender with
any request or directive regarding capital adequacy not currently in effect or
fully applicable as of the Closing Date (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful) from a central
bank or governmental authority or body having jurisdiction, does or shall have
the effect of reducing the rate of return on such Lender's capital as a
consequence of its obligations hereunder to a level below that which such Lender
could have achieved but for such law, treaty, rule, regulation, guideline or
order, or such change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then within 10 Business Days after written notice and demand by
such Lender (with copies thereof to the Agent), the Borrower shall from time to
time pay to such Lender additional amounts sufficient to compensate such Lender
for such reduction (but, in the case of outstanding Base Rate Advances, without
du plication of any amounts already recovered by such Lender by reason of an
adjustment in the applicable Base Rate). Each certificate as to the amount
payable under this Section 3.20 (which certificate shall set forth the basis for
requesting such amounts in reasonable detail), submitted to the Borrower by any
Lender in good faith, shall, absent manifest error, be final, conclusive and
binding for all purposes.
Section 3.21. Use of Proceeds. The Borrower shall use the proceeds of all
---------------
Loans only (i) to refinance Indebtedness outstanding under existing revolving
credit and lines of credit facilities, (ii) to fund capital expenditures and
working capital needs, and (iii) other general corporate purposes.
ARTICLE 4.
----------
CONDITIONS TO LOAN CLOSING AND EXTENSIONS OF LOANS
--------------------------------------------------
Section 4.1. Conditions Precedent to Initial Loans. At the time of
-------------------------------------
making of the initial Loans hereunder on the Closing Date, the following
conditions shall have been satisfied in a manner
-39-
satisfactory to the Agent and the Lenders:
(a) Opinion of the Borrower's Counsel. The Borrower shall have delivered
---------------------------------
to the Lenders, at the Borrower's expense, a favorable written opinion from (i)
Messrs. ▇▇▇▇▇▇ & Bird, special counsel for the Borrower, dated as of and
delivered on the date of execution of this Agreement, satisfactory to the Agent
and substantially in the form of Exhibit I attached hereto, and (ii) ▇▇▇▇ ▇.
---------
▇▇▇▇▇▇, Esq., Vice President, Law and Corporate Secretary of the Borrower,
dated as of and delivered on the date of execution of this Agreement,
satisfactory to the Agent and substantially in the form of Exhibit J attached
---------
hereto.
(b) No Defaults. The Borrower shall be in full compliance with all the
-----------
terms and conditions of this Agreement, and no Default or Event of Default shall
have occurred, and the Borrower shall have delivered to the Lenders a
certificate from an authorized officer of the Borrower certifying such matters
as the Lenders shall reasonably request.
(c) Accuracy of Representations and Warranties. The representations and
------------------------------------------
warranties set forth herein shall be true and correct, and the Borrower shall
have delivered to the Lenders a certificate from an authorized officer of the
Borrower certifying such matters related to the representations and warranties
as the Lenders shall reasonably request.
(d) Corporate Action and Authority; Incumbency Certificate. The Borrower
------------------------------------------------------
shall have delivered to the Lenders (i) a copy of the organizational papers of
the Borrower, certified as true and correct by the Secretary of State of the
State of Georgia, (ii) certificates from the Secretaries of State of those
States in which the Borrower is legally required to qualify to transact business
as a foreign corporation, certifying the Borrower's good standing as a
corporation in such States, and (iii) a copy of the Borrower's bylaws and the
resolutions passed by the Board of Directors of the Borrower authorizing the
execution and delivery of and the performance of the obligations under the Loan
Documents, each certified by the Secretary or Assistant Secretary of the
Borrower, on behalf of and under the seal of the Borrower, to be true and
correct. The Borrower also shall have delivered to the Lenders a certificate,
dated as of and delivered on the date of the execution of this Agreement and
signed on behalf of and under the seal of the Borrower by the Secretary or
Assistant Secretary of the Borrower, certifying the names of the officers of the
Borrower authorized to execute and deliver the Loan Documents and to request
Borrowings under this Agreement, together with the original, not photocopied,
signatures of such officers.
-40-
(e) Delivery of Notes. The Borrower shall have executed and delivered
-----------------
to the Lenders the Notes.
(f) Delivery of Credit Agreement. The Borrower shall have executed and
----------------------------
delivered to the Lenders the Agreement.
(g) Insurance Summary. Borrower shall have delivered to the Agent a
-----------------
certificate of insurance in a form satisfactory to the Lenders which provides a
listing of all the Borrower's insurance policies and the amount of coverage
provided thereby.
(h) Proceedings. All corporate and other proceedings taken or to be taken
-----------
in connection with the transactions contemplated hereby and all Loan Documents
and other documents incident thereto shall be satisfactory in form and
substance to the Lenders, and the Lenders shall have received all such
counterpart originals or certified or other copies of such documents as the
Lenders may reasonably request.
(i) Payoff of Existing Loan Facility. The Agent shall have received a
--------------------------------
payoff letter related to that certain Revolving Credit and Term Loan Agreement,
originally dated as of December 30, 1986 and as amended to the date hereof, by
and among the Borrower, Trust Company, as agent, and various lenders.
(j) Other Matters. Borrower shall have delivered to the Agent such other
-------------
certificates, reports, agreements, documents or other materials as the Lenders
shall reasonably request.
Section 4.2. Conditions to all Loans. At the time of the making of all
-----------------------
Loans (before as well as after giving effect to such Loans and to the proposed
use of the proceeds thereof), the following conditions shall have been satisfied
or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by the Borrower contained herein
shall be true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of the date
of such Loans;
(c) since the date of the most recent financial statements described in
Section 6.1, there shall have been no change which has had or could reasonably
be expected to have a Material Adverse Effect;
(d) there shall be no action or proceeding instituted or
-41-
pending before any court or other governmental authority or, to the knowledge of
the Borrower, threatened (i) which reasonably could be expected to have a
Material Adverse Effect, or (ii) seeking to prohibit or restrict the Borrower's
ownership or operation of any portion of its business or assets, or to compel
the Borrower to dispose of or hold separate all or any portion of its businesses
or assets, where such portion or portions of such business(es) or assets, as the
case may be, constitute a material portion of the total businesses or assets of
the Borrower or any Subsidiary;
(e) the Loans to be made and the use of proceeds thereof shall not
contravene, violate or conflict with, or involve the Agent or any Lender in a
violation of, any law, rule, injunction, or regulation, or determination of any
court of law or other governmental authority applicable to the Borrower; and
(f) The Agent shall have received such other documents or legal opinions
as the Agent or any Lender may reasonably request, all in form and substance
reasonably satisfactory to the Agent.
Each request for a Borrowing and the acceptance by the Borrower of the
proceeds thereof shall constitute a representation and warranty by the Borrower,
as of the date of the Loans comprising such Borrowing, that the applicable
conditions specified in Sections 4.1 and 4.2 have been satisfied.
ARTICLE 5.
----------
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents, warrants and covenants to the Lenders that:
Section 5.1 Organization and Qualification. The Borrower is an
------------------------------
agricultural membership cooperative duly incorporated and existing in good
standing under the Cooperative Marketing Act of the State of Georgia, each
Subsidiary is duly incorporated and existing in good standing under the law of
the jurisdiction in which it is incorporated, the Borrower and each of its
Subsidiaries have the corporate power to own their respective properties and to
carry on their respective businesses as now being conducted, and the Borrower
and each of its Subsidiaries is duly qualified as a foreign corporation to do
business and in good standing in every jurisdiction in which the nature of its
business conducted or property owned by it legally requires such qualification,
except to the extent failure to so qualify does not result in a Material Adverse
Effect on the Borrower and the Subsidiaries.
-42-
Section 5.2. Financial Statements. The Borrower has furnished the Lenders
--------------------
with the following financial statements, identified by a principal financial
officer of the Borrower: (i) consolidated balance sheets of the Borrower and its
Subsidiaries as at June 30, in the years of 1992 through 1994, and consolidated
statements of income and cash flow of the Borrower and its Subsidiaries for such
years, all certified by KPMG Peat Marwick; and (ii) unaudited consolidated
balance sheets of the Borrower and its Subsidiaries as at March 31, 1993, 1994
and 1995 and unaudited consolidated statements of income and cash flow for the
nine-month periods ended on such dates, prepared by the Borrower. Such
financial statements (including any related schedules and/or notes) are true and
correct in all material respects (subject, as to interim statements, to changes
resulting from audits and year end adjustments), have been prepared in
accordance with GAAP consistently followed throughout the periods involved and
show all liabilities, direct and contingent, of the Borrower and its
Subsidiaries required to be shown in accordance with such principles. The
balance sheets fairly present the condition of the Borrower and its Subsidiaries
as at the dates thereof, and the statements of income and cash flow fairly
present the results of the operations of the Borrower and its Subsidiaries for
the periods indicated. There has been no Material Adverse Effect to the
business, condition or operations (financial or otherwise) of the Borrower and
its Subsidiaries taken as a whole since June 30, 1994.
Section 5.3. Taxes. The Borrower has and each of its Subsidiaries has
-----
filed all federal, state and other income tax returns which, to the best
knowledge of the officers of the Borrower, are required to be filed, and each
has paid all taxes as shown on said returns and all assessments received by it
to the extent that such taxes have become due or except such as are being
contested in good faith by appropriate proceedings for which adequate reserves
have been established in accordance with GAAP. Federal, state and other income
tax returns of the Borrower and its Subsidiaries have been examined and reported
on by the taxing authorities or closed by applicable statutes and satisfied for
all fiscal years prior to and including the fiscal year ended on June 30, 1986.
Section 5.4. Actions Pending. Except as specified in Schedule 5.4, there
--------------- ------------
is no action, suit, investigation or proceeding pending or, to the knowledge of
the Borrower after due inquiry, threatened against the Borrower or any of its
Subsidiaries or any properties or rights of the Borrower or any of its
Subsidiaries, by or before any court, arbitrator or administrative or
governmental
-43-
body, which might result in any material adverse change in the business,
condition or operations of the Borrower and its Subsidiaries taken as a whole.
Section 5.5. Title to Properties. The Borrower has and each of its
-------------------
Restricted Subsidiaries has good and marketable title to its respective real
properties (other than properties which it leases) and good title to all of its
other respective properties and assets, including the properties and assets
reflected in the balance sheet as at June 30, 1994 hereinabove described (other
than properties and assets disposed of in the ordinary course of business),
subject to no Lien of any kind except Liens permitted by Section 7.3. Each of
the Borrower and its Restricted Subsidiaries enjoys peaceful and undisturbed
possession under all leases necessary in any material respect for the operation
of its respective properties and assets, none of which contains any unusual or
burdensome provisions which might have a Material Adverse Effect on the
operation of such properties and assets. All such leases are valid and
subsisting and in full force and effect.
Section 5.6. Regulation U, Etc. Except as disclosed on Schedule 5.6
----------------- ------------
attached hereto, neither the Borrower nor any Subsidiary owns or has any present
intention of acquiring any "margin stock" as defined in Regulation U (12 CFR
Part 221) of the Board of Governors of the Federal Reserve System (herein called
"margin stock"). Each Borrowing will be used solely for the purposes specified
in Section 3.21 of this Agreement. None of such proceeds will be used, directly
or indirectly, for the purpose of purchasing or carrying any margin stock or for
the purpose of reducing or retiring any indebtedness which was originally
incurred to purchase or carry any margin stock or for any other purpose which
might constitute this transaction a "purpose credit" within the meaning of such
Regulation U. Neither the Borrower nor any agent acting on its behalf has taken
or will take any action which might cause this Agreement or any of the Notes to
violate Regulations G, T, U, or X or (to the best knowledge of the Borrower) any
other regulation of the Board of Governors of the Federal Reserve System or to
violate the Securities Exchange Act of 1934, as amended, in each case as in
effect now or as the same may hereafter be in effect.
Section 5.7. ERISA. No accumulated funding deficiency (as defined in
-----
section 302 of ERISA and section 412 of the Code), whether or not waived, exists
with respect to any Plan (other than a Multiemployer Plan). No liability to the
PBGC has been or is expected by the Borrower to be incurred with respect to any
Plan (other than a Multiemployer Plan) by the Borrower or any of its
-44-
Subsidiaries which is or would be materially adverse to the Borrower and its
Subsidiaries taken as a whole. Neither the Borrower nor any of its subsidiaries
has incurred or presently expects to incur any withdrawal liability under Title
IV of ERISA with respect to any Multiemployer Plan which is or would be
materially adverse to the Borrower and its Subsidiaries taken as a whole. The
Borrower has delivered to the Lenders a list of all employee benefit plans
established or maintained by the Borrower and each Subsidiary, or as to which
the Borrower or any Subsidiary is a party in interest or a disqualified person.
The execution and delivery of this Agreement and the Borrowings hereunder will
not involve any prohibited transaction within the meaning of ERISA or in
connection with which a tax could be imposed pursuant to section 4975 of the
Code or a violation of section 406 or section 407 of ERISA.
Section 5.8. Outstanding Debt. There exists no default under the
----------------
provisions of any instrument evidencing Indebtedness of the Borrower or any
Restricted Subsidiary or of any other agreement relating thereto.
Section 5.9. Conflicting Agreements or Other Matters. Neither the Borrower
---------------------------------------
nor any of its Subsidiaries is a party to any contract or agreement or subject
to any charter or other corporate restriction which could have a Material
Adverse Effect on its business, property or assets, or financial condition.
Neither the Borrower nor any of its Subsidiaries is in default of any agreement
to which it is a party which could have a Material Adverse Effect on its
business, property or assets, or financial condition. Neither the execution or
delivery of this Agreement or the other Loan Documents, nor fulfillment of or
compliance with the terms and provisions hereof and thereof, will conflict with,
or result in a breach of the terms, conditions or provisions of, or constitute a
default under, or result in any violation of, or result in the creation of any
Lien upon any of the properties or assets of the Borrower or any of its
Subsidiaries pursuant to, the charter or bylaws of the Borrower or any of its
Subsidiaries, any award of any arbitrator or any agreement (including any
agreement with stockholders), instrument, order, judgment, decree, statute, law,
rule or regulation to which the Borrower or any of its Subsidiaries is subject.
Neither the Borrower nor any of its Subsidiaries is a party to, or otherwise
subject to any provision contained in, any instrument evidencing indebtedness of
the Borrower or any of its Subsidiaries, any agreement relating thereto or any
other contract or agreement (including its charter) which limits the amount of,
or otherwise imposes restrictions on the incurring of, Indebtedness of the
Borrower of the type to be evidenced by the Notes, except as set forth in the
agreements listed on Schedule 5.9 attached hereto. Except where failure or non-
------------
compliance would not have a Material
-45-
Adverse Effect on its business, property or assets, or financial condition, each
of the Borrower and its Subsidiaries has obtained all permits, licenses and
other authorizations which are required under, and is in compliance with,
federal, state and local laws and regulations relating to pollution,
reclamation, or protection of the environment, including laws relating to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, or hazardous or toxic materials or wastes into air, water, or
land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants, contaminants
or hazardous or toxic materials or wastes. Each of the Borrower and its
Subsidiaries is in material compliance with all laws and regulations relating to
equal employment opportunity and employee health and safety in all jurisdictions
in which the Borrower and each Subsidiary is presently doing business.
Section 5.10. Possession of Franchises, Licenses, Etc. The Borrower and
---------------------------------------
its Subsidiaries possess all franchises, certificates, licenses, permits and
other authorizations from governmental entities or regulatory authorities, and
all patents, trademarks, service marks, trade names, copyrights, licenses and
other rights, free from burdensome restrictions, that are necessary in any
material respect for the ownership, maintenance and operation of their
respective business, properties and assets, and neither the Borrower nor any of
its Subsidiaries is in violation of any thereof in any material respect.
Section 5.11. Governmental Consent. Neither the nature of the Borrower
--------------------
or any of its Subsidiaries nor any of their respective businesses or properties,
nor any relationship between the Borrower or any Subsidiary and any other
Person, nor any circumstance in connection with the execution and delivery of
the Loan Documents and the consummation of the transactions contemplated thereby
is such as to require any authorization, consent, approval, exemption or other
action by or notice to or filing with any court or administrative or
governmental body (other than routine filings after the date of closing with the
Securities and Exchange Commission and/or state Blue Sky authorities) in
connection with the execution and delivery of this Agreement and the other Loan
Documents or fulfillment of or compliance with the terms and provisions hereof
or thereof.
Section 5.12. Disclosure. Neither this Agreement nor any other document,
----------
certificate or statement furnished to the Lenders or the Agent by or on behalf
of the Borrower in connection herewith contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained
-46-
herein and therein not misleading. There is no fact known to the Borrower or
any of its Subsidiaries which would have a Material Adverse Effect or in the
future may (so far as the Borrower can now foresee) have a Material Adverse
Effect on the business, property or assets, or financial condition of the
Borrower or any of its Subsidiaries which has not been set forth in this
Agreement or in the other documents, certificates and statements furnished to
the Lenders or the Agent by or on behalf of the Borrower prior to the date
hereof in connection with the transactions contemplated hereby.
Section 5.13. Foreign Assets Control Regulations. Neither the borrowing
----------------------------------
by the Borrower hereunder nor its use of the proceeds thereof will violate the
Foreign Assets Control Regulations, the Cuban Assets Control Regulations or the
Iranian Assets Control Regulations of the United States Treasury Department (31
CFR Subtitle B, Chapter V) or any similar law or regulation.
Section 5.14. Labor Relations. Except as set forth on Schedule 5.14
--------------- -------------
attached hereto, neither the Borrower nor any of its Subsidiaries is a party to
any collective bargaining agreement, and there are no material grievances,
disputes or controversies with any union or any other organization of the
Borrower's employees, or threats of strikes, work stoppages or delays or any
asserted pending demands for collective bargaining by any union or organization.
Additionally, the hours worked and payment made to employees of the Borrower and
its Subsidiaries have not been in violation in any material respect of the Fair
Labor Standards Act or any other applicable law dealing with such matters. All
payments due from the Borrower and its Subsidiaries, or for which any claim may
be made against the Borrower and its Subsidiaries, on account of wages and
employee health and welfare insurance and other benefits have been paid or
accrued as liabilities on the books of the Borrower and its Subsidiaries in all
instances where the failure to pay or accrue such liabilities would reasonably
be expected to have a Material Adverse Effect on the Borrower and its
Subsidiaries.
Section 5.15. Enforceability of Agreement. This Agreement is the legal,
---------------------------
valid and binding agreement of the Borrower enforceable against the Borrower in
accordance with its terms, and the Notes, and all other Loan Documents, when
executed and delivered, will be similarly legal, valid, binding and enforceable,
except as the en forceability of the Notes and other Loan Documents may be
limited by bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditor's rights and remedies in general and by general principles of
equity, whether considered in a proceeding at law or in equity.
-47-
Section 5.16. Subsidiaries. Schedule 5.16 attached hereto correctly sets
------------ -------------
forth the name of each Subsidiary of the Borrower and the jurisdiction of its
organization. All the outstanding shares of stock or other ownership rights of
each such Subsidiary have been validly issued and are fully paid and non-
assessable and all such outstanding shares or other ownership rights, except as
noted on such Exhibit, are owned by the Borrower or an Affiliate free of any
Lien or claim.
Section 5.17. Insurance Coverage. Each property of the Borrower or any of
------------------
its Subsidiaries is insured for the benefit of the Borrower or a Subsidiary of
the Borrower in amounts deemed adequate by the Borrower's management against
risks usually insured against by Persons operating businesses similar to those
of the Borrower or its Subsidiaries in the localities where such properties are
located.
Section 5.18. Investments. Except for Investments permitted by Section 7.4
-----------
of this Agreement, the Borrower has no other Investments.
Section 5.19. Intercompany Loans; Dividends. There are no restrictions on
-----------------------------
the power of any Restricted Subsidiary to repay any intercompany loan or to pay
dividends on its capital stock.
ARTICLE 6.
----------
AFFIRMATIVE COVENANTS
---------------------
The Borrower covenants and agrees that so long as it may borrow under this
Agreement or so long as any Loan or other Indebtedness remains outstanding to
the Lenders that:
Section 6.1. Financial Statements. The Borrower shall deliver to the
--------------------
Lenders in duplicate:
(a) As soon as practicable and in any event within 45 days after the end
of each quarterly period (other than the last quarterly period) in each fiscal
year, unaudited consolidated and consolidating and business segment statements
of income and cash flow of the Borrower and its Subsidiaries for the period from
the beginning of the current fiscal year to the end of such quarterly period,
and an unaudited consolidated and consolidating and business segment balance
sheet of the Borrower and its Subsidiaries as at the end of such quarterly
period, setting forth, with respect to such
-48-
consolidated statements of income and cash flow and such consolidated balance
sheet, in comparative form, figures for the corresponding period in the
preceding fiscal year, all in reasonable detail and certified by the chief
financial officer of the Borrower;
(b) As soon as practicable and in any event within 90 days after the end
of each fiscal year, a consolidating and consolidated and business segment
statements of income and cash flow of the Borrower and its Subsidiaries for such
year, and a consolidating and consolidated and business segment balance sheet of
the Borrower and its Subsidiaries as at the end of such year, setting forth,
with respect to such consolidated statements of income and cash flow and such
consolidated balance sheet, in comparative form, corresponding figures from the
preceding annual audit, all in reasonable detail and reasonably satisfactory in
scope to the Agent, and, in the case of such consolidated financial statements,
certified to the Borrower by independent public accounts of recognized national
standing selected by the Borrower (and acceptable to the Agent), whose
certificate shall be in scope and substance satisfactory to the Agent, and, as
to the consolidating statements, certified by the chief financial officer of the
Borrower. In addition to any other information requested by the Agent pursuant
to the preceding sentence, together with each delivery of financial statements
required by Section 6.1 above, the Borrower will deliver to the Lenders a
certificate of such accountants stating that, in making the audit necessary to
the certification of such financial statements, they have obtained no knowledge
of any Event of Default or Default, or, if any Event of Default or Default
exists, specifying the nature and period of existence thereof. Such
accountants, however, shall not be liable to anyone by reason of their failure
to obtain knowledge of any Event of Default or Default that would not be
disclosed in the course of an audit conducted in accordance with generally
accepted auditing standards;
(c) Promptly upon transmission thereof, copies of all such financial
statements, proxy statements, notices and reports as the Borrower shall send to
its public stockholders and copies of all registration statements (without
exhibits) and all reports which it files with the Securities and Exchange
Commission (or any governmental body or agency succeeding to the functions of
the Securities and Exchange Commission);
(d) Promptly upon receipt thereof, a copy of each other report submitted
to the Borrower or any Subsidiary by
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independent accountants in connection with any annual, interim or special audit
made by them of the books of the Borrower or any Subsidiary; and
(e) With reasonable promptness, such other financial data as the Agent
or any Lender may reasonably request in writing.
Together with each delivery of financial statements required by Section 6.1, the
Borrower will deliver to the Lenders an Officer's Certificate (i) demonstrating
(with computations in reasonable detail) compliance by the Borrower and its
Subsidiaries as at the end of the quarterly period or fiscal year to which such
financial statement relates with the provisions of Section 7.1 and stating that
there exists no Event of Default or Default, or, if any Event of Default or
Default exists, specifying the nature and period of existence thereof and what
action the Borrower proposes to take with respect thereto and (ii) specifying
the details of insurance as required pursuant to Section 6.3 hereof. The
Borrower also covenants that forthwith upon the chief executive officer,
principal financial officer, or principal accounting officer of the Borrower
obtaining actual knowledge of any Event of Default or Default, it will deliver
to the Agent an Officer's Certificate specifying the nature and period of
existence thereof and what action the Borrower proposes to take with respect
thereto. Each Lender is hereby authorized to deliver a copy of any financial
statement delivered to it pursuant to this Section 6.1 to any regulatory body
having jurisdiction over such Lender and to which such financial statement is
required to be delivered.
Section 6.2. Inspection of Property. The Borrower shall permit any
----------------------
Person designated in writing by the Agent or any Lender, at the Agent's or such
Lender's expense, to visit and inspect any of the properties of the Borrower and
any of its Subsidiaries, to examine the corporate books and financial records of
the Borrower and its Subsidiaries and make copies thereof or extracts therefrom,
and to discuss the affairs, finances and accounts of any of such corporations
with the principal officers of the Borrower and its independent public
accountants, all at such reasonable times and as often as the Agent or any
Lender may reasonably request.
Section 6.3. Insurance. The Borrower covenants that it and each
---------
subsidiary will at all times maintain insurance in such amounts and against such
liabilities and hazards as customarily is maintained by other companies
operating similar businesses and, together with each delivery of financial
statements under Section 6.1, it will deliver to the Lenders an Officer's
Certificate
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specifying the details of such insurance then in effect.
Section 6.4. Conduct of Business. The Borrower covenants that it will
-------------------
and will cause each Restricted Subsidiary to remain substantially in the
respective area or field of business in which the Borrower and each Restricted
Subsidiary is engaged as of the date of this Agreement except that the Borrower
and its Restricted Subsidiaries may (a) enter other fields or areas of business
or (b) may exit existing fields or areas of business, to the extent that such
fields or areas do not exceed ten percent (10%) of the Borrower's Shareholders'
Equity.
Section 6.5. Corporate Existence; Maintenance of Properties. The Borrower
----------------------------------------------
shall (a) do or cause to be done all things necessary to preserve and keep in
full force and effect the corporate or other form of existence as the case may
be, rights and franchises of the Borrower and its Subsidiaries, (b) will cause
its properties and the properties of its Subsidiaries used or useful in the
conduct of their respective businesses to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, placements,
betterments and improvements thereto, all as in the judgment of the Borrower may
be necessary so that the businesses carried on in connection therewith may be
properly and advantageously conducted at all times, (c) will maintain possession
and ownership, all franchises, certificates, licenses, permits and other
authorizations from governmental entities or regulatory authorities, and all
patents, trademarks, service marks, trade names, copyrights, licenses and other
rights that are necessary in any material respect to the ownership, maintenance
and operation of its business, properties, and assets, and (d) will and will
cause each of its Subsidiaries to qualify, and remain qualified to conduct
business in each jurisdiction where the nature of the business or ownership of
property by the Borrower, or such Subsidiary, as the case may be, may legally
require such qualification, except where the failure to so qualify would not
have a material adverse effect on the Borrower and the Subsidiaries.
Section 6.6. Environmental Laws. The Borrower and its Subsidiaries
------------------
shall:
(a) Comply in all material respects with and use best efforts to ensure
compliance by all tenants and subtenants with all applicable Environmental Laws,
and shall obtain and comply with, and use reasonable efforts to ensure that all
tenants and subtenants obtain and comply with, any and all approvals,
registrations or permits required thereunder.
-51-
(b) Promptly report to the Lenders (i) the introduction of any Hazardous
Substances onto any facility owned or operated by the Borrower or a Subsidiary
thereof except for the use or storage thereof in the ordinary course of business
in compliance with all Environmental Laws, and (ii) the initiation of any
regulatory action against the Borrower or any Subsidiary thereof or in
connection with any such facility relating to any release of Hazardous
Substances which regulatory action the Borrower determines is likely to have a
material adverse effect on either the Borrower's or a Subsidiary's financial
condition.
(c) Defend, indemnify, and hold harmless the Lender, its employees,
agents, and officers from and against any and all penalties, fines, liabilities,
damages, costs, or expenses of whatever kind or nature asserted against the
Lender, except to the extent that such claims, demands, penalties, fines,
liabilities, damages, costs or expenses result from the gross negligence or
willful misconduct of the Lender or any of its employees, agents or officers,
arising out of, or in any way related to, (i) the presence, disposal, release,
or threatened release of any Hazardous Substances on any property at any time
owned or occupied by the Borrower or the Subsidiaries; (ii) any personal injury
(including wrongful death) or property damage (real or personal) arising out of
or related to such Hazardous Substances; (iii) any lawsuit brought or
threatened, reasonable settlement reached, or government order relating to such
Hazardous Substances, and/or (iv) any violation of laws, orders, regulations,
requirements, or demands of government authorities, which are based upon or in
any way related to such Hazardous Substances, including, without limitation,
attorney and consultant fees, inves tigation and laboratory fees, court costs,
and litigation ex penses.
Section 6.7. Taxes. The Borrower shall and shall cause each of its
-----
Subsidiaries to pay and discharge, or cause to be paid and discharged, before
the same shall become delinquent, all taxes, assessments and other governmental
charges levied or imposed upon it or upon its income, profits or properties,
provided that neither the Borrower nor any of its Subsidiaries shall be required
to pay or cause to be paid or discharged any such tax assessment, or charge
whose amount or validity is being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being maintained
and, provided further, that the Borrower shall, and shall cause each of its
Subsidiaries to, pay all such taxes, assessments and charges forthwith upon the
commencement of
-52-
proceedings to foreclose any Lien which may have attached as security therefor.
Section 6.8. Keeping of Books; Fiscal Year. The Borrower covenants that
-----------------------------
it will keep, and cause each of its Subsidiaries to keep, in accordance with
GAAP, proper books of record and account, containing complete and accurate
entries of all financial and business transactions of the Borrower and each Sub
sidiary. Additionally, the Borrower will, and will cause each of its
Subsidiaries to, keep the same fiscal year end as the one evidenced in the
financial statements delivered under Section 5.2.
Section 6.9. Compliance with Laws and Other Agreements. The Borrower
-----------------------------------------
shall, and shall cause each Subsidiary to, conduct its business operations and
obtain all necessary permits and licenses in substantial compliance with (i) all
applicable federal, state and local laws, rules and regulations and (ii) all
agreements, indentures and mortgages to which it is a party or by which it or
any of its properties is bound, unless the Borrower's or a Subsidiary's failure
to so comply would not have a material adverse effect on the Borrower or any
Subsidiary.
Section 6.10. Notice of Default. The Borrower shall notify the Lender of
-----------------
the occurrence of any Event of Default and of any default under any material
agreement, which shall be defined for the purposes of this Section 6.10 as any
agreement related to Indebtedness in excess of $500,000, or obligation with any
other Person, to which it or a Subsidiary is a party or by which it or a
Subsidiary or any of its or a Subsidiary's properties are bound, said notices to
be given immediately upon the Borrower's obtaining actual knowledge thereof;
provided, however, the failure of the Borrower to give such notice shall not
affect the right and power of the Lender to exercise any or all of the remedies
on default specified herein.
Section 6.11. Notice of Litigation. The Borrower shall notify the Lender
--------------------
of any action, suit or proceeding instituted by any Person against it or a
Subsidiary (i) where the uninsured claim for money damages is in excess of
$1,000,000 or (ii) which would cause the aggregate of uninsured claims for money
damages in all actions, suits or proceedings against it or a Subsidiary arising
out of one set of related facts or circumstances to exceed $2,000,000 or (iii)
which otherwise might have a material adverse impact on its or any Subsidiary's
assets or business operations, said notice to be given within 30 calendar days
of the first notice to the Borrower or any Subsidiary of the institution of such
action, suit or proceeding and to specify the amount of damages being claimed or
other relief being sought, the nature of the claim, the Person instituting the
action, suit or proceeding, and
-53-
any other significant features of the claim.
Section 6.12. ERISA. Promptly (and in any event within 30 days) after the
-----
Borrower or any of its Subsidiaries knows or has reason to know that a
Reportable Event with respect to any Plan has occurred, that any Plan is or may
be terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA, or that the Borrower or any of its Subsidiaries will or may incur any
material liability to or on account of a Plan under Section 4062, 4063, 4064,
4201 or 4204 of ERISA, the Borrower will deliver to the Lender, so long as the
Lender shall hold any Note, a certificate of the chief financial officer of the
Borrower setting forth information as to such occurrence and what action, if
any, the Borrower is required or proposes to take with respect thereto, together
with any notices concerning such occurrences which are required to be filed with
or by the Borrower, the PBGC or the plan administrator of any such Plan, as the
case may be. The Borrower shall furnish, at the request of any Lender, so long
as such Lender shall hold any Note, a copy of each annual report (Form 5500
Series) of any Plan received or prepared by the Borrower or any of its
Subsidiaries. Each annual report and any notice required to be delivered
hereunder shall be delivered no later than 10 days after the later of the date
such report or notice is filed with the Internal Revenue Service or the PBGC or
the date such report or notice is received by the Borrower or any of its
Subsidiaries, as the case may be.
Section 6.13. Use of Proceeds. The Borrower shall use the proceeds of all
---------------
Loans only in the manner set forth in Section 3.21 of this Agreement.
ARTICLE 7.
----------
NEGATIVE COVENANTS
------------------
The Borrower covenants and agrees that, so long as it may borrow under
this Agreement or so long as any Indebtedness remains Outstanding under the
Notes:
Section 7.1. Financial Covenants.
-------------------
(a) Consolidated Funded Debt to Leverage Ratio. The Borrower shall not
------------------------------------------
permit the ratio of Consolidated Funded Debt to Total Capital to exceed 0.55 to
1.0, calculated on a quarterly basis.
-54-
(b) Interest Coverage Ratio. The Borrower shall not permit the ratio of
-----------------------
EBIT to Consolidated Interest Expense, to be less than 1.50 to 1.0, calculated
quarterly for the fiscal quarter then ending and the preceding seven fiscal
quarters.
Section 7.2. Limitation on Restricted Payments. The Borrower covenants
---------------------------------
that it will not pay or declare any dividend or make any other distribution on
or on account of any class of its stock or other equity or make cash
distributions of equity (including cash patronage refunds), or make interest
payments on equity, or redeem, purchase or otherwise acquire, directly or
indirectly, any shares of its stock or other equity, or redeem, purchase or
otherwise acquire, directly or indirectly, any Subordinated Debt, including, but
not limited to, its Subordinated Capital Certificates of Interest, Subordinated
Loan Certificates and Cumulative Preferred Certificates of Interest (except
required redemptions as provided in the indentures pursuant to which such
Subordinated Debt was issued), or make any loans, advances or investments in
Golden Poultry or permitted under subparagraph (q) of Section 7.4 of this
Agreement or permit any Restricted Subsidiary to do any of the above (all of the
foregoing being herein called "Restricted Payments") except out of Consolidated
-------------------
Net Earnings Available for Restricted Payments. There shall not be included in
Restricted Payments: (x) dividends paid, or distributions made, in stock of the
Borrower or (y) exchanges of stock of one or more classes of the Borrower,
except to the extent that cash or other value is involved in such exchange. The
term "equity" as used in this Section 7.2 shall include the Borrower's common
stock, preferred stock, if any, other equity certificates, and notified equity
accounts of patrons.
Section 7.3. Liens. Create, assume or suffer to exist any Lien upon any
-----
of its property or assets whether now owned or hereafter acquired, except:
(a) Liens existing prior to the date of this Agreement, as set forth on
Schedule 7.3 attached hereto;
------------
(b) Liens for taxes not yet due, and Liens for taxes or Liens imposed by
ERISA which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained;
(c) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law created in the ordinary
course of business for amounts not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves are
being maintained;
-55-
(d) Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obli gations (exclusive of obligations
for the payment of borrowed money); and
(e) Other Liens otherwise prohibited by this Section 7.3 provided the
aggregate of such Liens does not exceed five percent (5%) of Consolidated Total
Assets.
Section 7.4. Restrictions on Loans, Advances, Investments and Contingent
-----------------------------------------------------------
Liabilities. Make or permit to remain outstanding any loan or advance to, or
-----------
extend credit other than credit extended in the normal course of business to any
Person which is not an Affiliate of the Borrower, or guarantee, endorse or
otherwise be or become contingently liable, directly or indirectly, in
connection with the obligations, stock or dividends of, or own, purchase or
acquire any stock, obligations or securities of, or any other interest in, or
make any capital contribution to, any Person, except that the Borrower or any
Subsidiary may:
(a) make or permit to remain outstanding loans, advances, indemnities, or
guarantees to any Subsidiary;
(b) acquire and own stock, obligations or securities received in
settlement of debts (created in the ordinary course of business) owing to the
Borrower or any Subsidiary;
(c) own, purchase or acquire prime commercial paper and certificates of
deposit in United States commercial banks (whose long-term debt is rated "A" or
better by ▇▇▇▇▇ s Investors Service or Standard and Poor's Corporation), in each
case due within one year from the date of purchase and payable in the United
States in Dollars;
(d) own, purchase and acquire obligations of the United States Government
or any agency thereof;
(e) own, purchase and acquire obligations guaranteed by the United States
Government;
(f) own, purchase and acquire repurchase agreements of United States
commercial banks (whose long-term debt is rated
-56-
"A" or better by ▇▇▇▇▇'▇ Investors Service or Standard and Poor's Corporation)
for terms of less than one year in respect of the foregoing certificates and
obligations;
(g) own, purchase and acquire tax-exempt securities maturing within one
year from the date of purchase and rated "A" or better by ▇▇▇▇▇'▇ Investors
Service or Standard and Poor's Corporation;
(h) own, purchase and acquire adjustable rate preferred stocks rated "A"
or better by ▇▇▇▇▇'▇ Investors Service or Standard and Poor's Corporation;
(i) endorse negotiable instruments for collection in the ordinary course
of business;
(j) make or permit to remain outstanding travel and other like advances to
officers and employees in the ordinary course of business;
(k) make or permit to remain outstanding investments as a general partner
in Golden Peanut in amount not to exceed $27,500,000;
(l) make or permit to remain outstanding equity investments in Golden
Poultry in an amount not to exceed $21,000,000;
(m) make or permit to remain outstanding equity investments in an amount
not to exceed $26,950,000 in and to Carolina Golden and/or AgriGolden;
(n) make or permit to remain outstanding loans made by GK Finance to
parties other than the Borrower or a Subsidiary in an amount not to exceed
$25,000,000 at any one time;
(o) make or permit to remain outstanding investments in the ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Midland Company existing on the date hereof plus increases due to normal
dividend reinvestment plans, stock splits, stock dividends or similar
arrangements;
(p) make or permit to remain outstanding investments described on
Schedule 7.4 attached hereto;
------------
(q) make additional loans or advances to, or guarantee, endorse or
otherwise be or become contingently liable in connection with the obligations,
stock, or dividends of, or own, purchase or acquire stock, obligations or
-57-
securities of, any other Person, provided that the aggregate principal amount of
such additional loans and advances, plus the aggregate amount of such additional
contingent liabilities plus the aggregate amount of the additional investment
(at original cost) in such stock, obligations and securities be limited to
amounts available out of Consolidated Net Earnings Available for Restricted
Payments, and further provided that no Subsidiary shall make any loans or
advances to, or acquire any stock, obligations or securities of, the Borrower,
except as provided in subparagraph (n) above; and
(r) make or permit to remain outstanding investments in GC Properties.
Section 7.5. Sale of Stock and Debt of Subsidiaries. Sell or otherwise
--------------------------------------
dispose of, or part with control of, any shares of stock or Indebtedness of any
Restricted Subsidiary, except to the Borrower or another Subsidiary, and except
that all shares of stock and Indebtedness of any Restricted Subsidiary at the
time owned by or owed to the Borrower and all Restricted Subsidiaries may be
sold as an entirety for a cash consideration which represents the fair value (as
determined in good faith by the Board of Directors of the Borrower) at the time
of sale of the shares of stock and Indebtedness so sold, provided that the
assets of such Restricted Subsidiary do not constitute a substantial part of the
consolidated assets of the Borrower and all Subsidiaries and that the earnings
of such Restricted Subsidiary shall not have constituted a substantial part of
Consolidated Net Earnings for any of the three fiscal years then most recently
ended, and further provided that, at the time of such sale, such Restricted
Subsidiary shall not own, directly or indirectly, any shares of stock or
Indebtedness of any other Subsidiary (unless all of the shares of stock and
Indebtedness of such other Subsidiary owned, directly or indirectly, by the
Borrower and all Subsidiaries are simultaneously being sold as permitted by this
Section 7.5).
As used in Section 7.4, Section 7.5, Section 7.6 and Section 8.1(j), a
"substantial part of" the consolidated assets of the Borrower and all
Subsidiaries shall mean assets which, as a whole, (x) constitute more than 10%
of Consolidated Total Assets or (y) contributed more than 15% of Consolidated
Net Earnings for any one or more of the three prior fiscal years of the
Borrower.
Section 7.6. Merger and Sale of Assets. Enter into any transaction of
-------------------------
merger, consolidation, pooling of interest, joint venture, syndicate or other
combination with any other Person except for Golden Peanut and Young Pecan or
sell, lease, transfer,
-58-
contribute as capital, or otherwise dispose of all or a substantial part of the
consolidated assets of the Borrower and all Subsidiaries or assets which shall
have contributed a substantial part of Consolidated Net Earnings for any of the
three fiscal years then most recently ended, in any single transaction or series
of related transactions, to any Person, except that:
(a) any Subsidiary may merge with the Borrower, provided that the Borrower
shall be the continuing or surviving corporation, or with any one or more other
Subsidiaries,
(b) any Subsidiary may sell, lease or otherwise dispose of any of its
assets to the Borrower or another Subsidiary, and
(c) any Subsidiary may sell or otherwise dispose of all or substantially
all of its assets subject to the conditions specified in Section 7.5 with
respect to a sale of the stock of such Subsidiary.
Section 7.7. Sale and Lease-Back. Enter into any arrangement, with any
-------------------
Person or under which such other Person is a party, providing for the leasing by
the Borrower or any Restricted Subsidiary of real or personal property, used by
the Borrower or any Restricted Subsidiary in the operations of the Borrower or
any Restricted Subsidiary, which has been or is sold or transferred by the
Borrower or any Restricted Subsidiary to any other Person to whom funds have
been or are to be advanced by such other Person on the security of such rental
obligations of the Borrower or such Restricted Subsidiary except to the extent
that the total amount of such arrangements involve, at any one time, assets or
property which constitute an amount equal to or less than ten percent (10%) of
Consolidated Total Assets.
Section 7.8. Sale or Discount of Receivables. Sell with recourse or
-------------------------------
discount or otherwise sell for less than the face value thereof, any of its
notes or accounts receivable except for the sale of accounts receivable which
sales shall not exceed $35,000,000 at any one time outstanding.
Section 7.9. Commodity Contracts. The Borrower covenants that it will
-------------------
not, nor will it permit any Subsidiary to, purchase or sell commodity futures
contracts except in bona fide hedging transactions in commodities that represent
production inputs or products to be marketed, or in commodities needed in
operations to meet manufacturing or market demands.
Section 7.10. Issuance of Stock by Restricted Subsidiaries. The Borrower
--------------------------------------------
covenants that it will not permit any
-59-
Restricted Subsidiary (either directly or indirectly by the issuance of rights
or options for, or securities convertible into, such shares) to issue, sell or
dispose of any shares of its stock of any class (other than directors'
qualifying shares, if any) except to the Borrower or another Subsidiary.
ARTICLE 8.
----------
EVENTS OF DEFAULT AND REMEDIES
------------------------------
Section 8.1. Events of Default. Any one or more of the following
-----------------
shall constitute an Event of Default hereunder:
(a) The Borrower fails to pay when due any payment of principal due on
any of the Notes; or
(b) The Borrower fails to pay within five (5) days of the due date
therefor any payment of (i) interest due on any of the Notes or (ii) any fees
provided for herein; or
(c) The Borrower or any Subsidiary defaults in any payment of principal or
interest on any other obligation for money borrowed (or any obligation under a
Capital Lease, any obligation under a conditional sale or other title retention
agreement, any obligation issued or assumed as full or partial payment for
property whether or not secured by a purchase money mortgage, or any obligation
under notes payable or drafts accepted representing extensions of credit) beyond
any period of grace provided with respect thereto, or the Borrower or any
Subsidiary fails to perform or observe any other agreement, term or condition
contained in any agreement under which any such obligation is created (or if any
other event thereunder or any such agreement shall occur and be continuing), and
in each case the effect of such failure or other event is to cause or to permit
the holder or holders of such obligation (or a trustee on behalf of such holder
or holders) to cause such obligation to become due prior to any stated maturity;
or
(d) Any representation or warranty contained herein or deemed to have been
made hereunder or made by or furnished in writing on behalf of the Borrower in
connection herewith shall be false or misleading in any material respect as of
the date made or deemed to have been made or the Borrower fails to perform or
observe any covenant contained in Sections 6.1 or
-60-
7.1 of this Agreement; or
(e) The Borrower fails to perform or observe any covenant, term or
condition contained in this Agreement (other than those contained in Sections
6.1 or 7.1) and such failure shall continue for more than 30 calendar days after
the earlier of (i) the date which the Borrower obtains knowledge thereof or (ii)
the Borrower is given notice thereof; or
(f) The Borrower or any Subsidiary fails to (i) make any payment relating
to any Indebtedness which exceeds $1,000,000 in the aggregate or (ii) fails to
observe or otherwise breaches any covenants contained in any agreement related
to such Indebtedness which causes or permits an acceleration of such
Indebtedness; or
(g) The Borrower or any Subsidiary shall make or take any action to make
an assignment for the benefit of creditors, petition or take any action to
petition any tribunal for the appointment of a custodian, receiver or any
trustee for it or a substantial part of its assets, or shall commence or take
any action to commence any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution, liquidation or debtor relief law
or statute of any jurisdiction, whether now or hereafter in effect including,
without limitation, the Bankruptcy Code; or, if there shall have been filed any
such petition or application, or any such proceeding shall have been commenced
against it, in which an order for relief is entered which remains unstayed and
in effect for more than 60 days; or the Borrower or any Subsidiary by any act or
omission shall indicate its consent to, approval of or acquiescence in any such
petition, application or proceeding or order for relief or the appointment of a
custodian, receiver or any trustee for it or any substantial part of any of its
properties, or shall suffer to exist any such custodianship, receivership or
trusteeship; or
(h) The Borrower or any Subsidiary shall have concealed, removed, or
permitted to be concealed or removed, any part of its property, with intent to
hinder, delay or defraud its creditors or any of them, or made or suffered a
transfer of any of its property which may be fraudulent under any bankruptcy,
fraudulent conveyance or similar law; or shall have made any transfer of its
property to or for the benefit of a creditor at a time when other creditors
similarly situated have not been paid while the Borrower or such Subsidiary is
insolvent; or shall have suffered or permitted, while insolvent, any creditor to
obtain a Lien upon any of its
-61-
property through legal proceedings or distraint which is not vacated or bonded
within 60 calendar days from the date thereof; or
(i) Any order, judgment or decree is entered in any proceedings against
the Borrower decreeing the dissolution of the Borrower and such order, judgment
or decree remains unstayed and in effect for more than 60 days; or
(j) Any order, judgment or decree is entered in any proceedings against
the Borrower or any Subsidiary decreeing a split-up of the Borrower or such
Subsidiary which requires the divestiture of assets representing a substantial
part, or the divestiture of the stock of a Subsidiary whose assets represent a
substantial part, of the consolidated assets of the Borrower and its
Subsidiaries (determined in accordance with GAAP) or which requires the
divestiture of assets or stock of a Subsidiary which shall have contributed a
substantial part of Consolidated Net Earnings for any of the three fiscal years
then most recently ended, and such order, judgment or decree remains unstayed
and in effect for more than 30 days; or
(k) A final judgment in an amount in excess of $10,000,000 is rendered
against the Borrower or any subsidiary and, within 30 days after entry thereof,
such judgment is not discharged or execution thereof stayed pending appeal, or
within 30 days after the expiration of any such stay, such judgment is not
discharged or provided for in accordance with a court approved order; or
(l) Either (i) any single employer Plan or Multiemployer Plan fails to
maintain the minimum funding standard required by Section 412 of the Code for
any plan year or a waiver of such standard is sought or granted under Section
412(d) of the Code, or (ii) any single employer Plan or Multiemployer Plan
subject to Title IV of ERISA is or has been terminated or the subject of
termination proceedings under ERISA, or (iii) the Borrower or a Subsidiary of
the Borrower or an ERISA Affiliate has incurred a liability to or on account of
any Plan under Section 4062, 4063, 4064, 4201 or 4204 of ERISA, or (iv) the
Borrower or a Subsidiary of the Borrower has engaged in a prohibited
transaction, and there results from any of the events specified in clauses (i)
through (iv) above a liability to the PBGC or any Plan, or a liability, penalty
or tax under ERISA or Section 4975 of the Code, as the case may be, equal to or
greater than $1,000,000
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that is not paid within 10 days of the due date therefor; or
(m) A default or event of default occurs under any of the agreements
evidencing the Prudential Indebtedness; or
(n) Any Person and its Affiliates acquires or possesses, directly or
indirectly, (1) the power (A) to vote 40% or more of the securities having
ordinary voting power for the election of directors of the Borrower or (B) to
direct or cause the direction of the management and policies of the Borrower,
whether through the ownership of voting securities, by contract or otherwise or
(2) 40% of the outstanding securities of the Borrower.
Section 8.2. Remedies on Default.
-------------------
(a) Upon the occurrence of an Event of Default (other than an Event of
Default described in Section 8.1(g)) and during the continuation thereof, the
Agent shall, at the request of the Required Lenders and at their option, (i)
terminate all Obligations of the Lenders to the Borrower, including, without
limitation, all obligations to extend Loans under this Agreement, (ii) declare
the Notes, including, without limitation, principal, accrued interest and costs
of collection (including, without limitation reasonable attorneys' fees if
collected by or through an attorney at law or in any judicial proceedings)
immediately due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are expressly waived, and (iii) demand that the
Borrower deposit, and upon receipt of such demand the Borrower shall deposit,
cash with the Agent in an amount equal to the amount of any Letters of Credit
that are outstanding, and such amounts shall be held by the Agent as cash
collateral to secure the Borrower's obligations to reimburse Trust Company for
drawings under such Letters of Credit.
(b) Upon the occurrence of an Event of Default under Section 8.1(g), (i)
all obligations of the Lenders to the Borrower, including, without limitation,
all obligations to extend Loans under this Agreement, shall terminate and (ii)
the Notes, including, without limitation, principal, accrued interest and costs
of collection (including, without limitation, reasonable attorneys' fees if
collected by or through an attorney at law or in bankruptcy or in any other
judicial proceedings) shall be immediately due and payable, without presentment,
demand, protest, or any other notice of any kind, all of which are expressly
waived, and (iii) the Borrower shall deposit, cash with the Agent in an amount
equal to the amount of any Letters of Credit that are
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outstanding, and such amounts shall be held by the Agent as cash collateral to
secure the Borrower's obligations to reimburse Trust Company for drawings under
such Letters of Credit.
(c) Upon the occurrence of an Event of Default and acceleration of the
Notes as provided in (a) or (b) above, the Lenders and the Agent, or any of
them, may pursue any remedy available under this Agreement, under the Notes, or
under any other Loan Document, or available at law or in equity, all of which
shall be cumulative. The order and manner in which the rights and remedies of
the Lenders under the Loan Documents and otherwise may be exercised shall be
determined by the Required Lenders.
(d) All payments with respect to this Agreement received by the Agent and
the Lenders, or any of them, after the occurrence of an Event of Default and
acceleration of the Notes, shall be applied first to the costs and expenses
(including attorneys' fees and disbursements) incurred by the Agent, acting as
the Agent, and the Lenders as a result of the Default, and thereafter paid pro
rata to the Lenders in the same proportion that the aggregate of the unpaid
principal amount owing on the Notes to each Lender, plus accrued and unpaid
interest thereon, bears to the aggregate of the unpaid principal amount owing on
all the Notes to all Lenders, plus accrued and unpaid interest thereon.
Regardless of how each Lender may treat the payments for the purpose of its own
accounting, for the purpose of computing the Borrower's obligations hereunder
and under the Notes, payments shall be applied first, to the costs and expenses
-----
incurred by the Agent, acting as the Agent, and the Lenders as a result of the
Default, as set forth above, second, to the payment of accrued and unpaid fees
------
of the Agent and the Lenders, third, to the payment of accrued and unpaid
-----
interest on the Notes, to and including the date of such application (ratably
according to the accrued and unpaid interest on the Loans), fourth, to the
------
ratable payment of the unpaid principal of the Notes, and fifth, to the payment
-----
of all other amounts then owing to the Agent or the Lenders under the Loan
Documents. No application of the payments will cure any Event of Default or
prevent acceleration, or continued acceleration, of amounts payable under the
Loan Documents or prevent the exercise, or continued exercise, of rights or
remedies of the Lenders hereunder or under applicable law.
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ARTICLE 9.
----------
THE AGENT
---------
Section 9.1. Appointment and Authorization. Each Lender hereby
-----------------------------
designates Trust Company as the Agent to act as herein specified. Each Lender
hereby irrevocably authorizes, and each holder of any Note by the acceptance of
a Note shall be deemed irrevocably to authorize, the Agent to take such action
on its behalf under the provisions of this Agreement and the Notes and any
other instruments and agreements referred to herein and to exercise such powers
and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Agent may perform any of
its duties hereunder by or through its agents or employees.
Section 9.2. Nature of Duties of the Agent. The Agent shall have no
-----------------------------
duties or responsibilities except those expressly set forth in this Agreement.
Neither the Agent nor any of its officers, directors, employees or agents shall
be liable for any action taken or omitted by it as such hereunder or in
connection herewith, unless caused by its or their gross negligence or willful
misconduct. Without limiting in any way the standard of care established by the
immediately preceding sentence, in performing its duties and responsibilities
set forth in this Agreement, the Agent shall act in accordance with its
customary banking practices. The Agent shall not have by reason of this
Agreement a fiduciary relationship in respect of any Lender; and nothing in this
Agreement, expressed or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in respect of this Agreement except as
expressly set forth herein.
Section 9.3. Lack of Reliance on the Agent.
-----------------------------
(a) Each Lender agrees that, independently and without reliance upon the
Agent, any other Lender, or the directors, officers, agents or employees of the
Agent or of any other Lender, each Lender, to the extent it deems appropriate,
has made and shall continue to make (i) its own independent investigation of the
financial condition and affairs of the Borrower and its Subsidiaries in
connection with the taking or not taking of any action in connection with this
Agreement and the other Loan Documents, including the decision to enter into
this Agreement, and (ii) its own appraisal of the creditworthiness of the
Borrower and its Subsidiaries, and, except as expressly provided in this
Agreement, the Agent shall have no duty or responsibility, either initially or
on a continuing basis, to provide any Lender with any credit or
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other information with respect thereto, whether coming into its possession
before the making of the Loans or at any time or times thereafter.
(b) The Agent shall not be responsible to any Lender for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability,
collectibility, priority or sufficiency of this Agreement or the Notes or the
financial condition of the Borrower or its Subsidiaries or be required to make
any inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or the Notes, or the financial
condition of the Borrower or its Subsidiaries, or the existence or possible
existence of any Default or Event of Default.
Section 9.4. Certain Rights of the Agent.
---------------------------
(a) If the Agent shall request instructions from the Required Lenders with
respect to any act or action (including the failure to act) in connection with
this Agreement, the Agent shall be entitled to refrain from such act or taking
such action unless and until the Agent shall have received instructions from the
Required Lenders and the Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Lender shall have any
right of action whatsoever against the Agent as a result of the Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders; provided, however, that the Agent shall not be required to act
-------- -------
or not act in accordance with any instructions of the Required Lenders if to do
so would expose the Agent to significant liability or would be contrary to any
Loan Document or to applicable law.
(b) The Agent may assume that no Event of Default has occurred and is
continuing, unless the Agent has received notice from the Borrower stating the
nature of the Event of Default, or has received notice from a Lender stating the
nature of the Event of Default and that such Lender considers the Event of
Default to have occurred and to be continuing.
(c) If the Agent may not, pursuant to Section 9.4(b), assume that no Event
of Default has occurred and is continuing, the Agent shall give notice thereof
to the Lenders
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and shall act or not act upon the instructions of the Required Lenders, provided
--------
that the Agent shall not be required to act or not act if to do so would expose
the Agent to significant liability or would be contrary to any Loan Document or
to applicable law, and provided further, that if the Required Lenders fail, for
-------- -------
five days after the receipt of notice from the Agent, to instruct the Agent,
then the Agent, in its discretion, may act or not act as it deems advisable for
the interests of the Lenders.
Section 9.5. Liability of the Agent. Neither the Agent nor any of its
----------------------
respective directors, officers, agents, or employees shall be liable for any
action taken or not taken by them under or in connection with the Loan
Documents, except for their own gross negligence or willful misconduct. Without
------
limitation on the foregoing, the Agent and its respective directors, officers,
agents, and employees:
(a) may treat the payee of any Note as the holder thereof until the Agent
receives notice of the assignment or transfer thereof in form satisfactory to
the Agent, signed by the payee and may treat each Lender as the owner of that
Lender's interest in the obligations due to the Lenders for all purposes of this
Agreement until the Agent receives notice of the assignment or transfer
thereof, in form satisfactory to the Agent, signed by that Lender;
(b) may consult with legal counsel, in-house legal counsel, independent
public accountants, in-house accountants and other professionals, or other
experts selected by it with reasonable care, or with legal counsel, independent
public accountants, or other experts for the Borrower, and shall not be liable
for any action taken or not taken by it or them in good faith in accordance with
the advice of such legal counsel, independent public accountants, or experts;
(c) will not be responsible to any Lender for any statement, warranty, or
representation made in any of the Loan Documents or in any notice, certificate,
report, request, or other statement (written or oral) in connection with any of
the Loan Documents;
(d) except to the extent expressly set forth in the Loan Documents, will
have no duty to ascertain or inquire as to the performance or observance by the
Borrower or any other Person of any of the terms, conditions, or covenants of
any of the Loan Documents or to inspect the property, books, or records of the
Borrower or any Subsidiary or other Person;
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(e) will not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, effectiveness, sufficiency, or value of
any Loan Document any other instrument or writing furnished pursuant thereto or
in connection therewith;
(f) will not incur any liability by acting or not acting in reliance upon
any Loan Document, notice, consent, certificate, document, statement, telecopier
message or other instrument or writing believed by it or them to be genuine and
to have been signed, sent or made by the proper Person; and
(g) will not incur any liability for any arithmetical error in computing
any amount payable to or receivable from any Lender hereunder, including,
without limitation, payment of principal and interest on the Notes, Loans, and
other amounts; provided that promptly upon discovery of such an error in
--------
computation, the Agent, the Lenders, and (to the extent applicable) the Borrower
shall make such adjustments as are necessary to correct such error and to
restore the parties to the position that they would have occupied had the error
not occurred.
Section 9.6. Indemnification. Each Lender shall, ratably in accordance
---------------
with the respective outstanding principal amount of its Loans, indemnify and
hold the Agent and its directors, officers, the Agents, and employees harmless
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, or disbursements of any kind or
nature whatsoever (including, without limitation, attorneys' fees and
disbursements) that may be imposed on, incurred by, or asserted against it or
them in any way relating to or arising out of the failure by the Borrower to pay
the obligations due to the Lenders hereunder or under the Notes or any action
taken or not taken by it as the Agent thereunder, except for the Agent's gross
------
negligence or willful misconduct. Without limitation of the foregoing, each
Lender shall reimburse the Agent upon demand for that Lender's ratable share of
any cost or expense incurred by the Agent in connection with the negotiation,
preparation, execution, delivery, administration, amendment, waiver,
refinancing, restructuring, reorganization (including a bankruptcy
reorganization), or enforcement of the Loan Documents, to the extent that the
Borrower is required to pay that cost or expense but fails to do so upon demand.
Section 9.7. The Agent and Affiliates. Trust Company (and each successor
------------------------
Agent) has the same rights and powers under the
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Loan Documents as any other Lender and may exercise the same as though it were
not the Agent; and the term the "Lender" or the "Lenders" includes Trust Company
in its individual capacity. Trust Company (and each successor Agent) and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of banking, trust or other business with the Borrower and any Affiliate of
the Borrower, as if it were not the Agent and without any duty to account
therefor to the Lenders. Trust Company (and each successor Agent) need not
account to any other Lender for any monies received by it for reimbursement of
its costs, expenses and fees as the Agent hereunder, or for any monies received
by it in its capacity as a Lender hereunder, except as otherwise provided
herein. This Agreement shall not be deemed to constitute a joint venture or
partnership between the Lenders.
Section 9.8. Successor Agent. The Agent may resign as such at any time
---------------
by written notice to the Borrower and the Lenders, to be effective upon a
successor's acceptance of appointment as the Agent. In such event, the Required
Lenders shall appoint a successor Agent or Agents, who must be from among the
Lenders, subject to the Borrower's written approval so long as no Default or
Event of Default exists hereunder; provided, that the Agent shall be entitled to
--------
appoint a successor Agent from among the Lenders, subject to acceptance of
appointment by that successor Agent, if the Required Lenders (with the
Borrower's written approval, if required) have not appointed a successor Agent
within 30 calendar days after the date the Agent gave notice of resignation or
was removed. Upon a successor's acceptance of appointment as the Agent, the
successor will thereupon succeed to and become vested with all the rights,
powers, privileges, and duties of the Agent under the Loan Documents, and the
resigning the Agent will thereupon be discharged from its duties and obligations
thereafter arising under the Loan Documents.
ARTICLE 10.
-----------
MISCELLANEOUS
-------------
Section 10.1. Notices. All notices, requests and other communications to
-------
any party hereunder shall be in writing (including bank wire, telecopy or
similar teletransmission or writing) and shall be given to such party at its
address or applicable teletransmission number set forth on the signature pages
hereof, or such other address or applicable teletransmission number as such
party may hereafter specify by notice to the Agent and the Borrower. Each such
notice, request or other communication shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified in
this Section and
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the appropriate answerback is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, (iii) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified in this Section and the appropriate
confirmation is received, or (iv) if given by any other means (including,
without limitation, by air courier), when delivered or received at the address
specified in this Section; provided that notices to the Agent shall not be
--------
effective until received.
Section 10.2. Amendments, Etc. No amendment or waiver of any provision of
----------------
this Agreement or the other Loan Documents, nor consent to any departure by any
Loan Party therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided that no amendment, waiver or consent shall, unless in
--------
writing and signed by all the Lenders do any of the following: (i) waive any of
the conditions specified in Section 4.1 or 4.2, (ii) increase the Commitments or
other con tractual obligations to the Borrower under this Agreement, (iii)
reduce the principal of, or interest on, the Notes or any fees hereunder, (iv)
postpone any date fixed for the payment in respect of principal of, or interest
on, the Notes or any fees hereunder, (v) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
number or identity of the Lenders which shall be required for the Lenders or any
of them to take any action hereunder, (vi) modify the definition of "Required
Lenders", or (vii) modify this Section 10.2. Notwithstanding the foregoing, no
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Lenders required hereinabove to take such action, affect the
rights or duties of the Agent under this Agreement or under any other Loan
Document.
Section 10.3. No Waiver; Remedies Cumulative. No failure or delay on the
------------------------------
part of the Agent, any Lender or any holder of a Note in exercising any right or
remedy hereunder or under any other Loan Document, and no course of dealing
between any Borrower and the Agent, any Lender or the holder of any Note shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right or remedy hereunder or under any other Loan Document preclude any other or
further exercise thereof or the exercise of any other right or remedy hereunder
or thereunder. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which the Agent, any Lender or the
holder of any
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Note would otherwise have. No notice to or demand on Borrower not required
hereunder or under any other Loan Document in any case shall entitle Borrower to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Agent, the Lenders or the holder of any
Note to any other or further action in any circumstances without notice or
demand.
Section 10.4. Payment of Expenses, Etc. The Borrower shall:
-------------------------
(i) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and expenses of the
Agent in the administration (both before and after the execution hereof and
including reasonable expenses actually incurred relating to advice of
counsel as to the rights and duties of the Agent and the Lenders with
respect thereto) of, and in connection with the preparation, execution and
delivery of, preservation of rights under, enforcement of, and, after a
Default or Event of Default, refinancing, renegotiation or restructuring of,
this Agreement and the other Loan Documents and the documents and
instruments referred to therein, and any amendment, waiver or consent
relating thereto (including, without limitation, the reasonable fees
actually incurred and disbursements of counsel for the Agent), and in the
case of enforcement of this Agreement or any Loan Document after an Event of
Default, all such reasonable, out-of-pocket costs and expenses (including,
without limitation, the reasonable fees actually incurred and disbursements
of counsel), for any of the Lenders;
(ii) subject, in the case of certain Taxes, to the applicable
provisions of Section 3.12(b), pay and hold each of the Lenders harmless
from and against any and all present and future stamp, documentary, and
other similar Taxes with respect to this Agreement, the Notes and any other
Loan Documents, any collateral described therein, or any payments due
thereunder, and save each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay or omission to pay
such Taxes; and
(iii) indemnify the Agent and each Lender, and their respective
officers, directors, employees, representatives and agents from, and hold
each of them harmless against, any and all costs, losses,
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liabilities, claims, damages or expenses incurred by any of them (whether
or not any of them is designated a party thereto) (an "Indemnitee") arising
-----------
out of or by reason of any investigation, litigation or other proceeding
related to any actual or proposed use of the proceeds of any of the Loans
or any Persons's entering into and performing of the Agreement, the Notes,
or the other Loan Documents, including, without limitation, the reasonable
fees actually incurred and disbursements of counsel (including foreign
counsel) incurred in connection with any such investigation, litigation or
other proceeding; provided, however, the Borrower shall not be obligated to
-------- -------
indemnify any Indemnitee for any of the foregoing arising out of such
Indemnitee's gross negligence or willful misconduct;
(iv) without limiting the indemnities set forth in subsection (iii)
above, indemnify each Indemnitee for any and all expenses and costs
(including without limitation, remedial, removal, response, abatement,
cleanup, investigative, closure and monitoring costs), losses, claims
(including claims for contribution or indemnity and including the cost of
investigating or defending any claim and whether or not such claim is
ultimately defeated, and whether such claim arose before, during or after
Borrower's ownership, operation, possession or control of its business,
property or facilities or before, on or after the date hereof, and
including also any amounts paid incidental to any compromise or settlement
by the Indemnitee or Indemnitees to the holders of any such claim),
lawsuits, liabilities, obligations, actions, judgments, suits,
disbursements, encumbrances, liens, damages (including without limitation
damages for contamination or destruction of natural resources), penalties
and fines of any kind or nature whatsoever (including without limitation in
all cases the reasonable fees actually incurred, other charges and
disbursements of counsel in connection therewith) incurred, suffered or
sustained by that Indemnitee based upon, arising under or relating to
Environmental Laws based on, arising out of or relating to in whole or in
part, the existence or exercise of any rights or remedies by any Indemnitee
under this Agreement, any other Loan Document or any related documents (but
excluding those incurred, suffered or sustained by any Indemnitee as a
result of any action taken by or on behalf of the Lenders with
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respect to any Subsidiary of the Borrower (or the assets thereof) owned
or controlled by the Lenders.
If and to the extent that the obligations of the Borrower under this Section
10.4 are unenforceable for any reason, the Borrower hereby agrees to make the
maximum contribution to the payment and satisfaction of such obligations which
is permissible under applicable law.
Section 10.5. Right of Setoff. In addition to and not in limitation of all
---------------
rights of offset that any Lender or other holder of a Note may have under
applicable law, each Lender or other holder of a Note shall, upon the occurrence
of any Event of Default and whether or not such Lender or such holder has made
any demand or any Borrower's obligations are matured, have the right to
appropriate and apply to the payment of Borrower's obligations hereunder and
under the other Loan Documents, all deposits of the Borrower (general or
special, time or demand, provisional or final) then or thereafter held by and
other indebtedness or property then or thereafter owing by such Lender or other
holder to the Borrower, whether or not related to this Agreement or any
transaction hereunder. Each Lender shall promptly notify the Borrower of any
offset hereunder.
Section 10.6. Benefit of Agreement.
--------------------
(a) This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the respective successors and assigns of the parties hereto,
provided that the Borrower may not assign or transfer any of its interest
hereunder without the prior written consent of the Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the account
of, any of its branch offices or the office of an Affiliate of such Lender.
(c) Each Lender may assign all or a portion of its interests, rights and
obligations under this Agreement (including all or a portion of any of its
Commitments and the Loans at the time owing to it and the Notes held by it) to
any Eligible Assignee; provided, however, that (i) the Agent and the Borrower
-------- -------
must give their prior written consent to such assignment (which consent shall
not be unreasonably withheld or delayed) unless such assignment is an Affiliate
of the assigning Lender, (ii) the amount of the Commitments, in the case of
assignment of the Commitments, or Loans, in the case of assignment of Loans, of
the assigning Lender subject to each assignment (determined as of the date the
assignment and
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acceptance with respect to such assignment is delivered to the Agent), shall not
be less than $5,000,000, and (iii) the parties to each such assignment shall
execute and deliver to the Agent an Assignment and Acceptance, together with a
Note or Notes subject to such assignment and, unless such assignment is to an
Affiliate of such Lender, a processing and recordation fee of $3,000. The
Borrower shall not be responsible for such processing and recordation fee or any
costs or expenses incurred by any Lender or the Agent in connection with such
assignment. From and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5) Business Days after
the execution thereof, the assignee thereunder shall be a party hereto and to
the extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement. Notwithstanding the
foregoing, the assigning Lender must retain after the consummation of such
Assignment and Acceptance, a minimum aggregate amount of Commitments or Loans,
as the case may be, of $10,000,000; provided, however, no such minimum amount
-------- -------
shall be required with respect to any such assignment made at any time there
exists an Event of Default hereunder. Within five (5) Business Days after
receipt of the notice and the Assignment and Acceptance, the Borrower, at its
own expense, shall execute and deliver to the Agent, in exchange for the
surrendered Note or Notes, a new Note or Notes to the order of such assignee in
a principal amount equal to the applicable Commitments or Loans assumed by it
pursuant to such Assignment and Acceptance and new Note or Notes to the
assigning Lender in the amount of its retained Commitment or Commitments or
amount of its retained Loans. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the date of the surrendered Note or Notes which
they replace, and shall otherwise be in substantially the form attached hereto.
(d) Each Lender may, without the consent of the Borrower or the Agent,
sell participations to one or more banks or other entities in all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitments in the Loans owing to it and the Notes held by it), provided,
--------
however, that (i) no Lender may sell a participation in its aggregate
-------
Commitments or Loans (after giving effect to any permitted assignment hereof) in
an amount in excess of fifty percent (50%) of such aggregate Commitments or
Loans, provided, however, sales of participations to an
-------- -------
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Affiliate of such Lender shall not be included in such calculation; provided,
--------
however, no such maximum amount shall be applicable to any such participation
-------
sold at any time there exists an Event of Default hereunder, (ii) such Lender's
obligations under this Agreement shall remain unchanged, (iii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, and (iv) the participating bank or other entity shall not be
entitled to the benefit (except through its selling Lender) of the cost
protection provisions contained in Article 3 of this Agreement, and (v) the
Borrower and the Agent and other Lenders shall continue to deal solely and
directly with each Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents, and such Lender
shall retain the sole right to enforce the obligations of the Borrower relating
to the Loans and to approve any amendment, modification or waiver of any
provisions of this Agreement. Any Lender selling a participation hereunder
shall provide prompt written notice to the Borrower of the name of such
participant.
(e) Any Lender or participant may, in connection with the assignment or
participation or proposed assignment or participation, pursuant to this Section,
disclose to the assignee or participant or proposed assignee or participant any
information relating to the Borrower or the Subsidiaries furnished to such
Lender by or on behalf of the Borrower or any Subsidiary. With respect to any
disclosure of confidential, non-public, proprietary information, such proposed
assignee or participant shall agree to use the information only for the purpose
of making any necessary credit judgments with respect to this credit facility
and not to use the information in any manner prohibited by any law, including
without limitation, the securities laws of the United States. The proposed
participant or assignee shall agree not to disclose any of such information
except (i) to directors, employees, auditors or counsel to whom it is necessary
to show such information, each of whom shall be informed of the confidential
nature of the information and shall agree to use the information and to hold the
information as confidential all in the same manner described above, (ii) in any
statement or testimony pursuant to a subpoena or order by any court,
governmental body or other agency asserting jurisdiction over such entity, or as
otherwise required by law (provided prior notice is given to the Borrower and
the Agent unless otherwise prohibited by the subpoena, order or law), and (iii)
upon the request or demand of any regulatory agency or authority with proper
jurisdiction. The proposed participant or assignee shall further agree to
return all
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documents or other written material and copies thereof received from any Lender,
the Agent or the Borrower relating to such confidential information unless
otherwise properly disposed of by such entity.
(f) Any Lender may at any time assign all or any portion of its rights in
this Agreement and the Notes issued to it to a Federal Reserve Bank; provided
--------
that no such assignment shall release the Lender from any of its obligations
hereunder.
Section 10.7. Governing Law; Submission to Jurisdiction, Etc.
----------------------------------------------
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE
STATE OF GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, THE
NOTES OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE SUPERIOR COURT OF ▇▇▇▇▇▇
COUNTY, GEORGIA, OR ANY OTHER COURT OF THE STATE OF GEORGIA OR OF THE UNITED
STATES OF AMERICA FOR THE NORTHERN DISTRICT OF GEORGIA, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY,
AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(c) THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER
AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING.
(d) Nothing herein shall affect the right of the Agent, any Lender, any
holder of a Note or any party to serve
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process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Borrower in any other jurisdiction.
(e) Any controversy or disagreement regarding any of the Loan Documents
may be settled by arbitration if unanimously agreed upon by the Borrower, the
Agent and each Lender (with it being understood that each of such parties shall
be entitled to make such a decision in its sole and absolute discretion).
Notwithstanding anything to the contrary contained in this Agreement, in no
event shall arbitration be a condition precedent to any right of legal action or
right of equity. Any such arbitration (if selected by the Borrower, the Agent,
and the Lenders) shall be conducted in a manner which is acceptable to all of
such parties.
Section 10.8. Independent Nature of the Lenders' Rights. The amounts
-----------------------------------------
payable at any time hereunder to each Lender shall be a separate and independent
debt, and each Lender shall be entitled to protect and enforce its rights
pursuant to this Agreement and its Notes, and it shall not be necessary for any
other Lender to be joined as an additional party in any proceeding for such
purpose.
Section 10.9. Counterparts. This Agreement may be executed in any number
------------
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
Section 10.10. Effectiveness; Survival.
-----------------------
(a) This Agreement shall become effective on the date (the "Effective
Date") on which all of the parties hereto shall have signed a counterpart hereof
(whether the same or different counterparts) and shall have delivered the same
to the Agent or, in the case of the Lenders, shall have given to the Agent
written or telecopy notice (actually received) that the same has been signed and
mailed to them.
(b) The obligations of the Borrower under Sections 3.12(b), 3.15, 3.16,
3.20, and 10.4 hereof shall survive after the payment in full of the Notes after
the final Maturity Date. All representations and warranties made herein, in the
certificates, reports, notices, and other documents delivered pursuant to this
Agreement shall survive the execution and delivery of this Agreement, the other
Loan Documents, and such other agreements and documents, the making of the Loans
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hereunder, and the execution and delivery of the Notes.
Section 10.11. Severability. In case any provision in or obligation under
------------
this Agreement or the other Loan Documents shall be invalid, illegal or
unenforceable, in whole or in part, in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
Section 10.12. Independence of Covenants. All covenants hereunder shall be
-------------------------
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitation of, another covenant, shall
not avoid the occurrence of a Default or an Event of Default if such action is
taken or condition exists.
Section 10.13. Change in Accounting Principles, Fiscal Year or Tax Laws. If
--------------------------------------------------------
(i) any change in the preparation of the financial statements referred to in
Section 5.1 or 6.1 hereafter occasioned by the promulgation of rules,
regulations, pronouncements and opinions by or required by the Financial
Accounting Standards Board or the American Institute of Certified Public
Accountants (or successors thereto or agencies with similar functions) (other
than changes mandated by FASB 106) results in a material change in the method of
calculation of financial covenants, standards or terms found in this Agreement,
(ii) there is any change in the Borrower's fiscal quarter or fiscal year, or
(iii) there is a material change in federal tax laws which materially affects
the Borrower's or any of the Subsidiaries' ability to comply with the financial
covenants, standards or terms found in this Agreement, the Borrower and the
Required Lenders agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating Borrower's or any of the Subsidiaries' financial
condition shall be the same after such changes as if such changes had not been
made. Unless and until such provisions have been so amended, the provisions of
this Agreement shall govern.
Section 10.14. Headings Descriptive; Entire Agreement. The headings of
--------------------------------------
the several sections and subsections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement. This Agreement, the other Loan Documents, and
the
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agreements and documents required to be delivered pursuant to the terms of this
Agreement constitute the entire agreement among the parties hereto and thereto
regarding the subject matters hereof and thereof and supersede all prior
agreements, representations and understandings related to such subject matters.
Section 10.15. Time is of the Essence. Time is of the essence in
----------------------
interpreting and performing this Agreement and all other Loan Documents.
Section 10.16. Usury. It is the intent of the parties hereto not to violate
-----
any federal or state law, rule or regulation pertaining either to usury or to
the contracting for or charging or collecting of interest, and the Borrower and
the Lenders agree that, should any provision of this Agreement or of the Notes,
or any act performed hereunder or thereunder, violate any such law, rule or
regulation, then the excess of interest contracted for or charged or collected
over the maximum lawful rate of interest shall be applied to the outstanding
principal indebtedness due to the Lenders by the Borrower under this Agreement.
Section 10.17. Construction. Should any provision of this Agreement require
------------
judicial interpretation, the parties hereto agree that the court interpreting or
construing the same shall not apply a presumption that the terms hereof shall be
more strictly construed against one party by reason of the rule of construction
that a document is to be more strictly construed against the party who it self
or though its agents prepared the same, it being agreed that the Borrower, the
Agent, the Lenders and their respective agents have participated in the
preparation hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Atlanta, Georgia, by their duly authorized
officers as of the day and year first above written.
Address: GOLD ▇▇▇▇ INC.
-------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: 404/393-5421 By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President - Finance
Attest: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
[CORPORATE SEAL]
[SIGNATURES CONTINUED ON NEXT PAGE]
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Address: TRUST COMPANY BANK, INDIVIDUALLY
-------
AS A LENDER AND AS THE AGENT
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Center Code 120
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: 404/588-8833
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
REVOLVING CREDIT COMMITMENT $10,000,000 20.00%
SEASONAL LINE OF CREDIT COMMITMENT $10,000,000 20.00%
364-DAY LINE OF CREDIT COMMITMENT $10,000,000 20.00%
PAYMENT OFFICE:
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Center Code 120
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
[SIGNATURES CONTINUED ON NEXT PAGE]
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Address: COBANK
-------
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: 413/789-3009
Attention: ▇▇▇▇▇▇ C. Little By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ C. Little
Title: Vice President
REVOLVING CREDIT COMMITMENT $10,000,000 20.00%
SEASONAL LINE OF CREDIT COMMITMENT $10,000,000 20.00%
364-DAY LINE OF CREDIT COMMITMENT $10,000,000 20.00%
PAYMENT OFFICE:
Drawer CS 198552
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
[SIGNATURES CONTINUED ON NEXT PAGE]
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Address: WACHOVIA BANK OF GEORGIA, N.A.
-------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: 404/332-5016
Attention: ▇▇▇▇ Seeds By: /s/ ▇▇▇▇ ▇. Seeds
------------------------------
Name: ▇▇▇▇ ▇. Seeds
Title: Vice President
REVOLVING CREDIT COMMITMENT $10,000,000 20.00%
SEASONAL LINE OF CREDIT COMMITMENT $10,000,000 20.00%
364-DAY LINE OF CREDIT COMMITMENT $10,000,000 20.00%
PAYMENT OFFICE:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
[SIGNATURES CONTINUED ON NEXT PAGE]
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Address: COOPERATIEVE CENTRALE
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RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND",
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: 212/916-7880
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ Michel De Konkaly Thege
------------------------------
Name: Michel De Konkaly Thege
Title:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
REVOLVING CREDIT COMMITMENT $10,000,000 20.00%
SEASONAL LINE OF CREDIT COMMITMENT $10,000,000 20.00%
364-DAY LINE OF CREDIT COMMITMENT $10,000,000 20.00%
PAYMENT OFFICE:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[SIGNATURES CONTINUED ON NEXT PAGE]
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Address: DG BANK DEUTSCHE
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GENOSSENSCHAFTSBANK
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: 404/524-4006
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
and Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice
President
REVOLVING CREDIT COMMITMENT $10,000,000 20.00%
SEASONAL LINE OF CREDIT COMMITMENT $10,000,000 20.00%
364-DAY LINE OF CREDIT COMMITMENT $10,000,000 20.00%
PAYMENT OFFICE:
DG Bank New York Branch
DG Bank Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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