EXHIBIT 10.2
EXECUTION COPY
REVOLVING CREDIT AGREEMENT
dated as of August 26, 2005
among
HAVERTYS CREDIT SERVICES, INC.
as Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
BANK OF AMERICA, N.A. and
REGIONS BANK, as Co-Documentation Agents,
WACHOVIA BANK, NATIONAL ASSOCIATION
as Syndication Agent
and
SUNTRUST BANK
as Administrative Agent
=================================================================
SUNTRUST CAPITAL MARKETS, INC.
as Lead Arranger and Book Manager
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; CONSTRUCTION................... 1
SECTION 1.1.
DEFINITIONS................................. 1
SECTION 1.2. CLASSIFICATIONS OF LOANS AND
BORROWINGS..... 16
SECTION 1.3. ACCOUNTING TERMS AND
DETERMINATION.......... 16
SECTION 1.4. TERMS
GENERALLY............................. 16
ARTICLE II AMOUNT AND
TERMS OF THE COMMITMENTS......... 17
SECTION 2.1. GENERAL DESCRIPTION OF
FACILITIES........... 17
SECTION 2.2. REVOLVING
LOANS............................. 17
SECTION 2.3. PROCEDURE FOR REVOLVING
BORROWINGS.......... 17
SECTION 2.4. SWINGLINE
COMMITMENT........................ 18
SECTION 2.5. PROCEDURE FOR SWINGLINE
BORROWING; ETC...... 18
SECTION 2.6. FUNDING OF
BORROWINGS....................... 19
SECTION 2.7. INTEREST
ELECTIONS.......................... 20
SECTION 2.8. OPTIONAL REDUCTION AND
TERMINATION OF
COMMITMENTS............................... 21
SECTION 2.9. REPAYMENT OF
LOANS.......................... 21
SECTION 2.10. EVIDENCE OF
INDEBTEDNESS.................... 22
SECTION 2.11. OPTIONAL
PREPAYMENTS........................ 22
SECTION 2.12. MANDATORY
PREPAYMENTS....................... 22
SECTION 2.13. INTEREST ON
LOANS........................... 23
SECTION 2.14.
FEES........................................ 23
SECTION 2.15. COMPUTATION OF INTEREST AND
FEES............ 24
SECTION 2.16. INABILITY TO DETERMINE INTEREST
RATES....... 24
SECTION 2.17.
ILLEGALITY.................................. 25
SECTION 2.18. INCREASED
COSTS............................. 25
SECTION 2.19. FUNDING
INDEMNITY........................... 26
SECTION 2.20.
TAXES....................................... 26
SECTION 2.21. PAYMENTS GENERALLY; PRO RATA
TREATMENT...... 28
SECTION 2.22. MITIGATION OF
OBLIGATIONS................... 29
SECTION 2.23. INTENTIONALLY
OMITTED....................... 29
SECTION 2.24. INCREASE OF COMMITMENTS;
ADDITIONAL LENDERS. 29
ARTICLE III CONDITIONS
PRECEDENT TO LOANS............... 31
SECTION 3.1. CONDITIONS TO
EFFECTIVENESS................. 31
SECTION 3.2. EACH CREDIT
EVENT........................... 33
SECTION 3.3. DELIVERY OF
DOCUMENTS....................... 33
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.............. 33
SECTION 4.1. EXISTENCE;
POWER............................ 33
SECTION 4.2. ORGANIZATIONAL POWER;
AUTHORIZATION......... 33
SECTION 4.3. GOVERNMENTAL APPROVALS; NO
CONFLICTS........ 34
SECTION 4.4.
RESERVED.................................... 34
SECTION 4.5. LITIGATION AND ENVIRONMENTAL
MATTERS........ 34
SECTION 4.6. COMPLIANCE WITH LAWS AND
AGREEMENTS......... 34
SECTION 4.7. INVESTMENT COMPANY ACT,
ETC................. 34
SECTION 4.8.
TAXES....................................... 35
SECTION 4.9. MARGIN
REGULATIONS.......................... 35
SECTION 4.10.
ERISA....................................... 35
SECTION 4.11. OWNERSHIP OF
PROPERTY....................... 35
SECTION 4.12.
DISCLOSURE.................................. 36
SECTION 4.13. LABOR
RELATIONS............................. 36
SECTION 4.14.
SUBSIDIARIES................................ 36
SECTION 4.15.
INSOLVENCY.................................. 36
SECTION 4.16.
OFAC........................................ 36
ARTICLE V
AFFIRMATIVE COVENANTS....................... 37
SECTION 5.1. FINANCIAL STATEMENTS AND
OTHER INFORMATION.. 37
SECTION 5.2. NOTICES OF MATERIAL
EVENTS.................. 37
SECTION 5.3. EXISTENCE; CONDUCT OF
BUSINESS.............. 38
SECTION 5.4. COMPLIANCE WITH LAWS,
ETC................... 38
SECTION 5.5. PAYMENT OF
OBLIGATIONS...................... 38
SECTION 5.6. BOOKS AND
RECORDS........................... 38
SECTION 5.7. VISITATION, INSPECTION,
ETC................. 38
SECTION 5.8. MAINTENANCE OF PROPERTIES;
INSURANCE........ 39
SECTION 5.9. USE OF
PROCEEDS............................. 39
ARTICLE VI
RESERVED.................................... 39
ARTICLE VII NEGATIVE
COVENANTS.......................... 39
ARTICLE VIII EVENTS OF
DEFAULT........................... 40
SECTION 8.1. EVENTS OF
DEFAULT........................... 40
ARTICLE IX THE
ADMINISTRATIVE AGENT.................... 42
SECTION 9.1. APPOINTMENT OF
ADMINISTRATIVE AGENT......... 42
SECTION 9.2. NATURE OF DUTIES OF
ADMINISTRATIVE AGENT.... 43
SECTION 9.3. LACK OF RELIANCE ON THE
ADMINISTRATIVE
AGENT.................................... 43
SECTION 9.4. CERTAIN RIGHTS OF THE
ADMINISTRATIVE AGENT.. 44
SECTION 9.5. RELIANCE BY ADMINISTRATIVE
AGENT............ 44
SECTION 9.6. THE ADMINISTRATIVE AGENT IN
ITS INDIVIDUAL
CAPACITY................................. 44
SECTION 9.7. SUCCESSOR ADMINISTRATIVE
AGENT.............. 44
SECTION 9.8. AUTHORIZATION TO EXECUTE
OTHER
LOAN DOCUMENTS........................... 45
SECTION 9.9. CO-DOCUMENTATION AGENTS AND
SYNDICATION
AGENT.................................... 45
ARTICLE X
MISCELLANEOUS............................... 45
SECTION 10.1.
NOTICES..................................... 45
SECTION 10.2. WAIVER;
AMENDMENTS.......................... 46
SECTION 10.3. EXPENSES;
INDEMNIFICATION................... 48
SECTION 10.4. SUCCESSORS AND
ASSIGNS...................... 49
SECTION 10.5. GOVERNING LAW; JURISDICTION;
CONSENT TO
SERVICE OF PROCESS....................... 52
SECTION 10.6. WAIVER OF JURY
TRIAL....................... 53
SECTION 10.7. COUNTERPARTS;
INTEGRATION................... 53
SECTION 10.8.
SURVIVAL.................................... 53
SECTION 10.9.
SEVERABILITY................................ 54
SECTION 10.10.
CONFIDENTIALITY............................. 54
SECTION 10.11. INTEREST RATE
LIMITATION.................... 54
SECTION 10.12. WAIVER OF EFFECT OF
CORPORATE SEAL.......... 55
SECTION 10.13. WAIVER RIGHT OF
SETOFF...................... 55
SECTION 10.14. PATRIOT
ACT................................. 55
SCHEDULES
SCHEDULE
I -
APPLICABLE
MARGIN AND APPLICABLE
PERCENTAGE
SCHEDULE II
-
COMMITMENT
AMOUNTS
SCHEDULE 4.14
-
SUBSIDIARIES
EXHIBITS
EXHIBIT A
-
FORM OF
REVOLVING CREDIT NOTE
EXHIBIT B
-
FORM OF
SWINGLINE NOTE
EXHIBIT C
-
FORM OF
ASSIGNMENT AND ACCEPTANCE
EXHIBIT 2.3
-
FORM OF
NOTICE OF REVOLVING BORROWING
EXHIBIT
2.5 - FORM OF NOTICE OF
SWINGLINE BORROWING
EXHIBIT 2.7
- FORM OF
CONTINUATION/CONVERSION
EXHIBIT
3.1(B)(IV) -
FORM OF
SECRETARY'S CERTIFICATE
EXHIBIT
3.1(B)(VII) - FORM OF OFFICER'S
CERTIFICATE
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT
AGREEMENT (this "Agreement") is
made and entered into as of August 26, 2005, by and among
HAVERTYS CREDIT SERVICES, INC., a Tennessee corporation (the
"Borrower"), the several banks and other
financial
institutions
from time to time party hereto (the "Lenders"),
and SUNTRUST
BANK, in its capacity as administrative
agent for the
Lenders
(the "Administrative Agent"), and as swingline lender (the
"Swingline Lender").
W I T N E S S E T H:
WHEREAS, the Borrower
has requested that the
Lenders
establish a $20,000,000 revolving credit
facility in favor of the
Borrower;
WHEREAS, subject to
the terms and conditions of this
Agreement, the Lenders severally, to the extent of their
respective Commitments as defined herein, are willing to
establish the requested revolving credit
facility in
favor of
the Borrower.
NOW, THEREFORE, in
consideration of the
premises and
the mutual covenants herein contained, the
Borrower, the Lenders,
the Administrative Agent and the Swingline Lender agree as
follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section
1.1.
Definitions. In
addition to the other terms
defined herein, the following terms used
herein shall have
the
meanings herein specified (to be equally
applicable to both
the
singular and plural forms of the terms
defined):
"Additional Commitment Amount" shall mean, at any time,
(i) $70,000,000, less (ii) the aggregate principal
amount, if
any, by which the Parent Revolving Commitments have been
increased after the Closing Date pursuant
to Section 2.24 of
the
Parent Credit Agreement.
"Additional Lender"
shall have the meaning
given to
such term in Section 2.24.
"Adjusted LIBO Rate" shall mean, with respect to each
Interest Period for a Eurodollar Borrowing,
the rate per annum ob
tained by dividing (i) LIBOR for such
Interest Period by (ii) a
percentage equal to 1.00 minus the
Eurodollar Reserve Percentage.
"Administrative Agent" shall have the meaning assigned
to such term in the opening paragraph
hereof.
"Administrative Questionnaire" shall mean, with respect
to each Lender, an administrative questionnaire
in the form
prepared by the Administrative Agent and submitted to the
Administrative Agent duly completed by such
Lender.
"Affiliate" shall
mean, as to any
Person, any
other
Person that directly, or indirectly through one or more
intermediaries, Controls, is Controlled by, or is
under common
Control with, such Person. For purposes of this definition,
"Control" shall mean the power, directly or
indirectly, either to
(i) vote 5% or more of the securities having
ordinary voting
power for the election of directors (or persons performing
similar functions) of a Person or (ii) direct or cause the
direction of the management and policies of a
Person, whether
through the ability to exercise voting power,
by contract or
otherwise. The terms "Controlling",
"Controlled by", and
"under
common Control with" have meanings
correlative thereto.
"Aggregate Revolving Commitment Amount" shall mean the
aggregate principal amount of the Aggregate
Revolving Commitments
from time to time. On the Closing Date, the Aggregate
Revolving
Commitment Amount equals $20,000,000.
"Aggregate
Revolving
Commitments"
shall
mean,
collectively, all Revolving Commitments of all
Lenders at any
time outstanding.
"Applicable Lending Office" shall mean, for each Lender
and for each Type of Loan, the "Lending
Office" of such
Lender
(or an Affiliate of such Lender) designated
for such Type of Loan
in the Administrative Questionnaire
submitted by such Lender or
such other office of such Lender (or an
Affiliate of such Lender)
as such Lender may from time to time specify to the
Administrative Agent and the Borrower as
the office by which
its
Loans of such Type are to be made and
maintained.
"Applicable Margin"
shall mean, with
respect to
all
Revolving Loans outstanding on any date, a
percentage per
annum
determined by reference to the applicable
Fixed Charge
Coverage
Ratio (as such term is defined in, or
incorporated by reference
into, the Parent Guaranty Agreement) in
effect on such date
as
set forth on Schedule I; provided, that a change in the
Applicable Margin resulting from a change in
the Fixed Charge
Coverage Ratio shall be effective on the
second Business Day
after which the Parent delivers the
financial statements required
by Section 5.1(a) or (b) of the
Parent Credit Agreement and the
compliance certificate required by Section
5.1(c) of the
Parent
Credit Agreement; provided further, that if
at any time the
Parent shall have failed to deliver such
financial statements and
such certificate, the Applicable Margin
shall be at Level I
as
set forth on Schedule I until such time as such financial
statements and certificate are delivered,
at which time the
Applicable Margin shall be determined as provided above.
Notwithstanding the foregoing, the Applicable
Margin from the
Closing Date until the financial statements and compliance
certificate for the Parent's fiscal quarter
ending September
30,
2005 are required to be delivered under the Parent Credit
Agreement shall be at Level II as set forth
on Schedule I.
"Applicable Percentage" shall mean, with respect to the
commitment fee as of any date, the percentage per annum
determined by reference to the applicable
Fixed Charge
Coverage
Ratio (as such term is defined in, or
incorporated by reference
into, the Parent Guaranty Agreement) in
effect on such date
as
set forth on Schedule I; provided, that a change in the
Applicable Percentage resulting from a
change in the Fixed Charge
Coverage Ratio shall be effective on the
second Business Day
after which the Parent delivers the
financial statements required
by Section 5.1(a) or (b) of the
Parent Credit Agreement and the
compliance certificate required by Section
5.1(c) of the
Parent
Credit Agreement; provided further, that if
at any time the
Parent shall have failed to deliver such
financial statements and
such certificate, the Applicable
Percentage shall be at Level I
as set forth on Schedule I until such time as
such financial
statements and certificate are delivered,
at which time the
Applicable Percentage shall be determined as provided above.
Notwithstanding the foregoing, the
Applicable Percentage for the
commitment fee from the Closing Date until the financial
statements and compliance certificate for the
Parent's fiscal
quarter ending September 30, 2005
as required to
be delivered
under the Parent Credit Agreement shall be
at Level II as
set
forth on Schedule I.
"Approved Fund" shall
mean any Person (other
than a
natural Person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in
commercial
loans
and similar extensions of credit in
the ordinary course of
its
business and that is administered or
managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an
entity or an Affiliate of an
entity that administers or manages a
Lender.
"Assignment and
Acceptance" shall mean an assignment
and acceptance entered into by a Lender and
an assignee (with the
consent of any party whose consent is required by Section
10.4(b)) and accepted by the Administrative
Agent, in the form of
Exhibit C or any other form approved by the
Administrative Agent.
"Availability Period" shall mean the period from the
Closing Date to the Revolving Commitment
Termination Date.
"Base Rate" shall mean the higher of (i) the per annum
rate which the Administrative Agent
publicly announces from time
to time to be its prime lending rate,
as in effect from time
to
time, and (ii) the Federal Funds Rate, as
in effect from time
to
time, plus one-half of one percent (0.50%).
The Administrative
Agent's prime lending rate is a reference
rate and does not
necessarily represent the lowest or best rate charged to
customers. The Administrative Agent may make
commercial loans or
other loans at rates of interest at, above or below the
Administrative Agent's prime lending rate.
Each change in the
Administrative Agent's prime lending rate
shall be effective from
and including the date such change is
publicly announced as being
effective.
"Borrower"
shall have the meaning
assigned to
such
term in the introductory paragraph
hereof.
"Borrowing" shall mean
a borrowing consisting
of (i)
Loans of the same Class and Type, made,
converted or continued on
the same date and in case of Eurodollar
Loans, as to
which a
single Interest Period is in effect, or
(ii) a Swingline Loan.
"Business Day"
shall mean (i) any day
other than a
Saturday, Sunday or other day on which commercial banks in
Atlanta, Georgia are authorized or required
by law to close
and
(ii) if such day relates to a Borrowing of, a payment or
prepayment of principal or interest on, a
conversion of or
into,
or an Interest Period for, a Eurodollar
Loan or a notice
with
respect to any of the foregoing, any day on
which dealings
in
Dollars are carried on in the London
interbank market.
"Capital Lease
Obligations" of any Person shall mean
all obligations of such Person to pay rent
or other amounts under
any lease (or other arrangement
conveying the right to use) real
or personal property, or a combination
thereof, which obligations
are required to be classified and accounted
for as capital leases
on a balance sheet of such Person
under GAAP, and the amount of
such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" shall mean the occurrence of one or
more of the following events: (a) any
sale, lease, exchange
or
other transfer (in a single transaction
or a series of
related
transactions) of all or substantially all of the
assets of the
Parent to any Person or "group" (within
the meaning of the
Securities Exchange Act of 1934 and the rules
of the Securities
and Exchange Commission thereunder in
effect on the date hereof),
(b) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or
"group" (within
the
meaning of the Securities Exchange Act of
1934 and the rules
of
the Securities and Exchange Commission
thereunder as in effect on
the date hereof) acting in concert (other than by Class A
Shareholders) acquiring beneficial
ownership, of 30% or
more of
the outstanding shares of the Class A
Common Stock of the Parent;
(c) occupation of a majority of the seats (other
than vacant
seats) on the board of directors of the
Parent by Persons
who
were neither (i) nominated by the
current board of directors or
(ii) appointed by directors so nominated;
or (c) the Parent shall
cease to own and control 100% of the capital stock of the
Borrower.
"Change in
Law" shall mean (i) the adoption
of any
applicable law, rule or regulation after the date of this
Agreement, (ii) any change in any applicable law, rule or
regulation, or any change in the interpretation
or application
thereof, by any Governmental Authority after
the date of
this
Agreement, or (iii) compliance by any Lender
(or its Applicable
Lending Office) (or for purposes of Section
2.18(b), by such
Lender's holding company, if applicable) with any request,
guideline or directive (whether or not
having the force of
law)
of any Governmental Authority made or
issued after the date
of
this Agreement.
"Class" when
used in reference to any Loan or
Borrowing, refers to whether such Loan, or
the Loans
comprising
such Borrowing, are Revolving Loans or
Swingline Loans and
when
used in reference to any Commitment, refers
to whether such
Commitment is a Revolving Commitment or a
Swingline Commitment.
"Class A Common Stock" shall mean all issued and
outstanding Class A common stock of the
Parent.
"Class A Shareholders" shall mean the Persons that own
the Class A Common Stock on the Closing
Date, together with their
spouses and direct descendants who acquire
shares of Class A
Common Stock by sale, transfer or gift.
"Closing Date"
shall mean the date on which the
conditions precedent set forth in Section 3.1
and Section 3.2
have been satisfied or waived in accordance
with Section 10.2.
"Code" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to
time.
"Commitment" shall
mean a Revolving
Commitment or
a
Swingline Commitment or any combination
thereof (as the
context
shall permit or require).
"Contractual Obligation" of any Person shall mean any
provision of any security issued by such Person or of any
agreement, instrument or undertaking under
which such Person
is
obligated or by which it or any of the
property in which it
has
an interest is bound.
"Default" shall mean any condition or event that, with
the giving of notice or the lapse of time or both, would
constitute an Event of Default.
"Default Interest" shall have the meaning set forth in
Section 2.13(c).
"Dollar(s)" and the sign "$" shall mean lawful money of
the United States of America.
"Environmental Laws"
shall mean all laws, rules,
regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements
issued, promulgated or
entered into by or with any Governmental
Authority, relating
in
any way to the environment, preservation
or reclamation of
natural resources, the management, Release
or threatened Release
of any Hazardous Material or to health and
safety matters.
"Environmental
Liability" shall mean
any liability,
contingent or otherwise (including any liability
for damages,
costs of environmental investigation and
remediation, costs
of
administrative oversight, fines, natural resource damages,
penalties or indemnities), of the Borrower
or any Subsidiary
directly or indirectly resulting from or
based upon (a) any
actual or alleged violation of any
Environmental Law, (b)
the
generation, use, handling, transportation,
storage, treatment
or
disposal of any Hazardous Materials, (c)
any actual or
alleged
exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any
contract, agreement or other consensual
arrangement pursuant
to
which liability is assumed or imposed with
respect to any of
the
foregoing.
"ERISA" shall mean the Employee Retirement Income Secu
rity Act of 1974, as amended from time to
time, and any successor
statute.
"ERISA Affiliate"
shall mean any
trade or business
(whether or not incorporated), which,
together with the Borrower,
is treated as a single employer under
Section 414(b) or (c)
of
the Code or, solely for the purposes
of Section 302 of ERISA and
Section 412 of the Code, is treated
as a single employer
under
Section 414 of the Code.
"ERISA Event" shall
mean (a) any
"reportable
event",
as defined in Section 4043 of ERISA or the
regulations issued
thereunder with respect to a Plan (other
than an event for
which
the 30-day notice period is waived); (b)
the existence with
respect to any Plan of an "accumulated
funding deficiency"
(as
defined in Section 412 of the Code or Section
302 of ERISA),
whether or not waived; (c) the filing
pursuant to Section
412(d)
of the Code or Section 303(d) of
ERISA of an application for a
waiver of the minimum funding standard with
respect to any
Plan;
(d) the incurrence by the Borrower or any
of its ERISA Affiliates
of any liability under Title IV of ERISA
with respect
to the
termination of any Plan; (e) the receipt by
the Borrower or
any
ERISA Affiliate from the PBGC or a plan
administrator
appointed
by the PBGC of any notice relating to an
intention to terminate
any Plan or Plans or to appoint a trustee
to administer any Plan;
(f) the incurrence by the Borrower or any
of its ERISA Affiliates
of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA
Affiliate of any notice, or
the receipt by any Multiemployer Plan
from the Borrower or
any
ERISA Affiliate of any notice, concerning
the imposition of
Withdrawal Liability or a determination
that a Multiemployer Plan
is, or is expected to be, insolvent or
in reorganization, within
the meaning of Title IV of ERISA.
"Eurodollar" when used
in reference to
any Loan or
Borrowing refers to whether such Loan, or the Loans
comprising
such Borrowing, bears interest at a
rate determined by reference
to the Adjusted LIBO Rate.
"Eurodollar
Reserve Percentage"
shall
mean
the
aggregate of the maximum reserve
percentages (including, without
limitation, any emergency, supplemental, special or other
marginal reserves) expressed as a decimal
(rounded upwards to the
next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with
respect to the Adjusted LIBO
Rate pursuant to regulations issued by the
Board of Governors
of
the Federal Reserve System (or any Governmental Authority
succeeding to any of its principal functions)
with respect
to
eurocurrency funding (currently referred to as "eurocurrency
liabilities" under Regulation D). Eurodollar Loans shall be
deemed to constitute eurocurrency funding
and to be subject
to
such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may
be available from
time
to time to any Lender under Regulation D.
The Eurodollar
Reserve
Percentage shall be adjusted automatically on
and as of the
effective date of any change in any reserve
percentage.
"Event of Default"
shall have the meaning provided in
Article VIII.
"Excluded Taxes"
shall mean with respect to the
Administrative Agent, any Lender or any other
recipient of
any
payment to be made by or on account of any
obligation of
the
Borrower hereunder, (a) income or franchise
taxes imposed on
(or
measured by) its net income by the United
States of America,
and
by the jurisdiction under the laws of
which such recipient
is
organized or in which its principal office
is located or, in
the
case of any Lender, in which its
applicable lending
office is
located, (b) any branch profits taxes imposed
by the United
States of America or any similar tax imposed by any other
jurisdiction in which any Lender is located
and (c) in the
case
of a Foreign Lender, any withholding
tax that (i) is imposed on
amounts payable to such Foreign Lender at
the time such
Foreign
Lender becomes a party to this Agreement, (ii)
is imposed on
amounts payable to such Foreign Lender at any
time that such
Foreign Lender designates a new lending
office, other than
taxes
that have accrued prior to the designation
of such lending office
that are otherwise not Excluded Taxes,
and (iii) is attributable
to such Foreign Lender's failure to comply
with Section 2.20(e).
"Existing Credit
Agreement" shall mean
that certain
Credit Agreement, dated as of March 27,
2002, by and among
the
Borrower, the lenders from time to time
party thereto,
SunTrust
Bank, as Administrative Agent, Wachovia
Securities,
Inc., as
Syndication Agent, and Bank of America, N.A.,
as Documentation
Agent.
"Federal Funds Rate" shall mean, for any day, the rate
per annum (rounded upwards, if necessary,
to the next 1/100th
of
1%) equal to the weighted average of the rates
on overnight
Federal funds transactions with member
banks of the Federal
Reserve System arranged by Federal funds
brokers, as published by
the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so
published for any Business
Day, the Federal Funds Rate for such day
shall be the
average
rounded upwards, if necessary, to the next
1/100th of 1% of
the
quotations for such day on such transactions
received by the
Administrative Agent from three Federal funds brokers of
recognized standing selected by the
Administrative Agent.
"Fee Letter" shall
mean that certain fee letter, dated
as of July 11, 2005, executed by
SunTrust Capital Markets, Inc.
and SunTrust Bank and accepted by the Loan
Parties.
"Foreign Lender" shall
mean any Lender that is not a
United States person under Section
7701(a)(3) of the Code.
"GAAP" shall
mean generally
accepted accounting
prin
ciples in the United States applied on a
consistent basis
and
subject to the terms of Section 1.3.
"Governmental
Authority" shall mean the government of
the United States of America, any
other nation or any
political
subdivision thereof, whether state or local,
and any agency,
authority, instrumentality, regulatory
body, court, central
bank
or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative
powers or functions of
or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall
mean any obligation, contingent or
otherwise, of the
guarantor
guaranteeing or having the economic effect of
guaranteeing any
Indebtedness or other obligation of any other Person (the
"primary obligor") in any manner, whether
directly or indirectly
and including any obligation, direct or indirect, of the
guarantor (a) to purchase or pay (or
advance or supply funds for
the purchase or payment of) such
Indebtedness or other obligation
or to purchase (or to advance or supply
funds for the
purchase
of) any security for the payment thereof,
(b) to purchase or
lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or
other obligation
of
the payment thereof, (c) to maintain working
capital, equity
capital or any other financial statement
condition or
liquidity
of the primary obligor so as to enable the
primary obligor to pay
such Indebtedness or other obligation
or (d) as an account party
in respect of any letter of credit or
letter of guaranty
issued
in support of such Indebtedness or
obligation; provided, that the
term "Guarantee" shall not include
endorsements for collection or
deposits in the ordinary course of
business. The amount
of any
Guarantee shall be deemed to be an amount
equal to the stated
or
determinable amount of the primary
obligation in respect of which
Guarantee 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. The
term "Guarantee"
used as a verb has a corresponding
meaning.
"Hazardous Materials"
shall mean all explosive or
radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants,
including petroleum
or
petroleum distillates, asbestos or asbestos
containing materials,
polychlorinated biphenyls, radon gas, infectious or medical
wastes and all other substances or wastes
of any nature regulated
pursuant to any Environmental Law.
"Hedging Obligations" of any Person shall mean any and
all obligations of such Person,
whether absolute or
contingent
and howsoever and whensoever created, arising, evidenced or
acquired under (i) any and all Hedging
Transactions, (ii) any and
all cancellations, buy backs, reversals, terminations or
assignments of any Hedging Transactions and
(iii) any and all
renewals, extensions and modifications of any Hedging
Transactions and any and all substitutions for any Hedging
Transactions.
"Hedging Transaction"
of any Person
shall mean any
transaction (including an agreement with
respect thereto) now
existing or hereafter entered into between
such Person and
any
Lender or Affiliate of any Lender that is a
rate swap, basis
swap, forward rate transaction, commodity swap,
interest rate
option, foreign exchange transaction, cap transaction, floor
transaction, collateral transaction, forward transaction,
currency swap transaction, cross-currency
rate swap transaction,
currency option or any other similar
transaction (including
any
option with respect to any of these transactions) or any
combination thereof, whether linked to one or more interest
rates, foreign currencies, commodity prices,
equity prices
or
other financial measures.
"Indebtedness" of any Person shall mean, without dupli
cation (i) all obligations of such Person for
borrowed money,
(ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all
obligations of such Person in respect of the
deferred purchase
price of property or services (other than
trade payables incurred
in the ordinary course of business on terms
customary in
the
trade; provided, that for purposes of Section 8.1(f), trade
payables overdue by more than 120 days
shall be included in
this
definition except to the extent that any of
such trade
payables
are being disputed in good faith and by
appropriate
measures),
(iv) all obligations of such Person under
any conditional sale or
other title retention agreement(s)
relating to property acquired
by such Person, (v) all Capital Lease
Obligations of such Person,
(vi) all obligations, contingent or
otherwise, of such Person in
respect of letters of credit, acceptances or
similar extensions
of credit, (vii) all Guarantees of such
Person of the type
of
Indebtedness described in clauses (i) through
(v) above, (viii)
all Indebtedness of a third party secured
by any Lien on property
owned by such Person, whether or not
such Indebtedness has
been
assumed by such Person, (ix) all obligations of
such Person,
contingent or otherwise, to purchase,
redeem, retire or otherwise
acquire for value any common stock of such
Person, (x) Off-
Balance Sheet Liabilities, (xi) all Hedging
Obligations and (xii)
any obligations of Variable Interest Entities of the type
described in clauses (i) through (xi)
above. The
Indebtedness of
any Person shall include the
Indebtedness of any partnership or
joint venture in which such Person is a general
partner or a
joint venturer, except to the extent that
the terms of such
Indebtedness provide that such Person is
not liable therefor.
"Indemnified Taxes"
shall mean Taxes other than
Excluded Taxes.
"Information
Memorandum" shall mean
the Confidential
Information Memorandum dated July 2005 relating to the Loan
Parties and the transactions contemplated
by this Agreement
and
the other Loan Documents.
"Interest Period"
shall mean with respect to any
Eurodollar Borrowing, a period of one, two,
three or six
months;
provided, that:
(i) the initial
Interest Period for such Borrowing shall
commence on the
date of such Borrowing (including the date of any
conversion from
a Borrowing of another Type), and each Interest
Period occurring
thereafter in respect of such Borrowing shall
commence on the
day on which the next preceding Interest Period
expires;
(ii) if any Interest Period would otherwise
end on a day other
than a Business Day, such Interest Period
shall be extended to
the next succeeding Business Day, unless
such Business Day falls
in another calendar month, in which case
such Interest Period
would end on the next preceding Business
Day;
(iii) any Interest
Period which begins on the last Business
Day of a calendar month or on a day for
which there is no nu
merically corresponding day in the calendar
month at the end of
such Interest Period shall end on the last
Business Day of such
calendar month; and
(iv) no Interest Period may extend beyond the Revolving
Commitment
Termination Date.
"Lenders" shall have the meaning assigned to such term
in the opening paragraph of this Agreement and
shall include,
where appropriate, the Swingline Lender and each Additional
Lender that joins this Agreement pursuant
to Section 2.24.
"LIBOR" shall mean,
for any applicable Interest Period
with respect to any Eurodollar Loan, the British Bankers'
Association Interest Settlement Rate per annum
for deposits
in
Dollars for a period equal to such
Interest Period appearing on
the display designated as Page 3750 on the
Dow Jones Markets
Service (or such other page on that service
or such other service
designated by the British Bankers'
Association for the display of
such Association's Interest Settlement
Rates for Dollar deposits)
as of 11:00 a.m. (London, England time)
on the day that is
two
Business Days prior to the first day of the
Interest Period or if
such Page 3750 is unavailable for any reason
at such time, the
rate which appears on the Reuters Screen ISDA
Page as of
such
date and such time; provided, that if the
Administrative
Agent
determines that the relevant foregoing sources are
unavailable
for the relevant Interest Period, LIBOR
shall mean the rate
of
interest determined by the Administrative
Agent to be the average
(rounded upward, if necessary, to the
nearest 1/100th of 1%)
of
the rates per annum at which deposits
in Dollars are offered
to
the Administrative Agent two (2) Business
Days preceding the
first day of such Interest Period by
leading banks in the London
interbank market as of 10:00 a.m. (Atlanta, Georgia
time) for
delivery on the first day of such Interest
Period, for the number
of days comprised therein and in an amount
comparable to
the
amount of the Eurodollar Loan of the
Administrative Agent.
"Lien" shall mean any mortgage, pledge, security inter
est, lien (statutory or otherwise), charge, encumbrance,
hypothecation, assignment, deposit arrangement, or other
arrangement having the practical effect of
the foregoing or
any
preference, priority or other security
agreement or preferential
arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any
capital lease having the same economic effect
as any of the
foregoing).
"Loan Documents" shall
mean, collectively, this Agree
ment, the Notes (if any), all Notices of
Borrowing, all
Notices
of Conversion/Continuation and any
and all other instruments,
agreements, documents and writings executed in
connection
with
any of the foregoing.
"Loan Parties" shall
mean, collectively, the Borrower
and the Parent.
"Loans" shall
mean all Revolving
Loans and
Swingline
Loans in the aggregate or any of them, as
the context shall
require.
"Material Adverse
Effect" shall mean, with respect to
any event, act, condition or occurrence of whatever nature
(including any adverse determination in any litigation,
arbitration, or governmental investigation or proceeding),
whether singularly or in conjunction with any
other event or
events, act or acts, condition or conditions,
occurrence
or
occurrences whether or not related, a
material adverse change in,
or a material adverse effect on, (i)
the business, results
of
operations, financial condition, assets,
liabilities or prospects
of the Borrower or of the Loan Parties and their
Subsidiaries
taken as a whole, (ii) the ability of the
Loan Parties to perform
any of their obligations under the Loan
Documents, (iii)
the
rights and remedies of the Administrative
Agent, the
Swingline
Lender, and the Lenders under any of the
Loan Documents or
(iv)
the legality, validity or enforceability of
any of the Loan
Documents.
"Material Indebtedness" shall mean Indebtedness (other
than the Loans) or Hedging Obligations, of
any one or more of the
Loan Parties and their Subsidiaries in an aggregate
principal
amount exceeding $10,000,000. For purposes of determining
Material Indebtedness, the "principal amount"
of any Hedging
Obligations at any time shall be the Net
Mark-to-Market
Exposure
of such Hedging Obligations at such
time.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth
in Section 4001(a)(3) of ERISA.
"Net Mark-to-Market Exposure" of any Person shall mean,
as of any date, with respect to any Hedging
Obligation,
the
excess (if any) of all unrealized losses over
all unrealized
profits of such Person arising from such
Hedging Obligation.
"Unrealized losses" shall mean the fair
market value of the
cost
to such Person of replacing the
Hedging Transaction giving rise
to such Hedging Obligation as of such
date (assuming the Hedging
Transaction was to be terminated as of that date), and
"unrealized profits" means the fair market
value of the gain
to
such Person of replacing such Hedging
Transaction as of such date
(assuming such Hedging Transaction were to
be terminated as
of
that date).
"Notes" shall mean, collectively, the Revolving Credit
Notes and the Swingline Note.
"Notice of
Conversion/Continuation" shall mean the
notice given by the Borrower to the Administrative
Agent in
respect of the conversion or continuation
of an outstanding
Borrowing as provided in Section
2.7(b).
"Notice of Revolving
Borrowing" shall have the meaning
as set forth in Section 2.3.
"Notice of Swingline
Borrowing" shall have the meaning
as set forth in Section 2.5.
"Notices of
Borrowing" shall mean,
collectively, the
Notices of Revolving Borrowing and the Notices of Swingline
Borrowing.
"Obligations" shall
mean all amounts owing by the
Borrower to the Administrative Agent or any
Lender (including the
Swingline Lender) pursuant to or in connection with this
Agreement or any other Loan Document, including without
limitation, all principal, interest (including any interest
accruing after the filing of any petition
in bankruptcy or
the
commencement of any insolvency,
reorganization or like proceeding
relating to the Borrower, whether or not a
claim for post-filing
or post-petition interest is allowed in such
proceeding),
all
reimbursement obligations, fees, expenses,
indemnification
and
reimbursement payments, costs and expenses
(including all
fees
and expenses of counsel to the Administrative
Agent and any
Lender (including the Swingline Lender)
incurred pursuant to this
Agreement or any other Loan Document), whether direct or
indirect, absolute or contingent,
liquidated or unliquidated, now
existing or hereafter arising hereunder or
thereunder, and
all
Hedging Obligations owing to the
Administrative Agent, any Lender
or any of their Affiliates incurred in
order to limit
interest
rate or fee fluctuation with respect to
the Loans, and all
obligations and liabilities incurred in connection with
collecting and enforcing the foregoing, together with all
renewals, extensions, modifications or
refinancings thereof.
"Off-Balance Sheet
Liabilities" of any
Person shall
mean (i) any repurchase obligation or
liability of such
Person
with respect to accounts or notes
receivable sold by such Person,
including, without limitation, any
Receivables Financings, (ii)
any liability of such Person under any sale and leaseback
transactions which do not create a
liability on the balance sheet
of such Person, (iii) any Synthetic
Lease Obligation or (iv) any
obligation arising with respect to any
other transaction which is
the functional equivalent of or takes
the place of borrowing but
which does not constitute a liability on the
balance sheet
of
such Person.
"OSHA" shall mean the
Occupational Safety
and Health
Act of 1970, as amended from time to time, and
any successor
statute.
"Other Taxes" shall
mean any and all present or future
stamp or documentary taxes or any other
excise or property taxes,
charges or similar levies arising from any
payment made hereunder
or from the execution, delivery or
enforcement of, or otherwise
with respect to, this Agreement or any
other Loan Document other
than Excluded Taxes.
"Parent" shall mean Haverty Furniture Companies, Inc.,
a Maryland corporation.
"Parent Credit
Agreement"
shall mean that certain
Revolving Credit Agreement, dated as of the
date hereof, by
and
among the Parent, the lenders from time to
time party thereto and
SunTrust Bank, as administrative agent, as amended,
restated,
supplemented or otherwise modified from
time to time.
"Parent Guaranty
Agreement" shall mean
that certain
Guaranty Agreement, dated as of the date
hereof, executed by
the
Parent in favor of the Administrative Agent
for the benefit of
the Lenders, as amended, restated, supplemented
or otherwise
modified from time to time.
"Parent
Revolving
Commitments"
shall mean
all
"Revolving Commitments", as defined in the Parent Credit
Agreement.
"Participant" shall
have the meaning set forth in
Section 10.4(d).
"Payment Office"
shall mean the office of the
Administrative Agent located at 303 Peachtree Street, N.E.,
Atlanta, Georgia 30308, or such other
location as to which
the
Administrative Agent shall have given written notice to the
Borrower and the other Lenders.
"PBGC" shall mean the
Pension Benefit Guaranty Corpora
tion referred to and defined in ERISA,
and any successor
entity
performing similar functions.
"Permitted Encumbrances" shall mean
(i) Liens imposed by
law for taxes or special assessments not
yet due or which
are being contested in good faith by appropriate
proceedings and
with respect to which adequate reserves are being
maintained in
accordance with GAAP;
(ii) 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 in
accordance with GAAP;
(iii) pledges and
deposits made in the ordinary course of
business in
compliance with workers' compensation, unemployment
insurance and
other social security laws or regulations;
(iv) deposits to secure the performance of bids, trade
contracts,
leases,
statutory obligations, surety and appeal bonds,
performance
bonds and other obligations of a like nature, in each
case in the
ordinary course of business;
(v) judgment and
attachment liens not giving rise to an Event of
Default or Liens
created by or existing from any litigation or
legal proceeding
that are currently being contested in good faith
by appropriate
proceedings and with respect to which adequate
reserves are
being maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, rights-of-way and similar
encumbrances on
real property imposed by law or arising in the
ordinary
course of business
that do not secure any monetary
obligations and
do not materially detract from the value of the
affected
property or materially
interfere with the ordinary
conduct of
business of the Borrower and its Subsidiaries taken as
a whole;
provided, that the term "Permitted Encumbrances" shall not
include any Lien securing Indebtedness.
"Person" shall mean any individual, partnership, firm,
corporation, association, joint venture, limited liability
company, trust or other entity, or any
Governmental Authority.
"Plan" shall
mean any employee
pension benefit
plan
(other than a Multiemployer Plan) subject to
the provisions of
Title IV of ERISA or Section 412 of the
Code or Section 302
of
ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated,
would under
Section 4069 of ERISA be deemed to be) an
"employer" as
defined
in Section 3(5) of ERISA.
"Pro Rata Share" shall mean, with respect to any
Commitment of any Lender at any time, a
percentage, the numerator
of which shall be such Lender's Commitment (or if such
Commitments have been terminated or expired or
the Loans have
been declared to be due and payable, such
Lender's Revolving
Credit Exposure), and the denominator of
which shall be the
sum
of such Commitments of all Lenders
(or if such Commitments have
been terminated or expired or the Loans
have been declared to
be
due and payable, all Revolving Credit
Exposure of all
Lenders
under such Commitments).
"Prudential Agreement"
shall mean that
certain Note
Agreement dated December 29, 1993 by and
between the Parent
and
The Prudential Insurance Company of America relating to the
Parent's $92,500,000 in aggregate principal
amount 10.10%
notes
due April 15, 2000, 7.16% notes due
April 15, 2007, 7.44%
notes
due October 13, 2008 and 7.95% notes
due August 15, 2008, either
as originally executed or as thereafter
amended, modified or
supplemented.
"Receivables
Financing" shall
mean a transaction
pursuant to which funds are advanced to the
Borrower or any
of
its Subsidiaries in exchange for which the
Borrower or such
Subsidiaries shall sell, pledge, contribute
or place a
Lien on
any or all of its accounts or notes
receivables to repay,
in
whole or in part, such funds. However, this definition shall
not
include any debit card, credit card or
revolving charge
sales
where the obligor is a financial
institution.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as
the same may be
in
effect from time to time, and any successor
regulations.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System, as
the same may be
in
effect from time to time, and any successor
regulations.
"Related Parties"
shall mean,
with respect to any
specified Person, such Person's Affiliates and
the respective
directors, officers, employees, agents and advisors of such
Person and such Person's Affiliates.
"Release" shall
mean any release, spill, emission,
leaking, dumping, injection, pouring, deposit, disposal,
discharge, dispersal, leaching or migration
into the environment
(including ambient air, surface water,
groundwater, land
surface
or subsurface strata) or within any
building, structure, facility
or fixture.
"Required Lenders"
shall mean, at any
time, Lenders
holding 51% or more of the aggregate outstanding Revolving
Commitments at such time or if the Lenders have
no Commitments
outstanding, then Lenders holding 51% or more
of the Revolving
Credit Exposure.
"Requirement of
Law" for any Person
shall mean the
articles or certificate of incorporation and
bylaws or other
organizational or governing documents of such
Person, and any
law, treaty, rule or regulations, or determination of a
Governmental Authority, in each case applicable
to or binding
upon such Person or any of its property
or to which such
Person
or any of its property is subject.
"Responsible Officer"
shall mean any of the
chairman,
president, the chief executive officer, the chief operating
officer, the chief financial officer, the
treasurer or
a vice
president of the Borrower or such other
representative of
the
Borrower as may be designated in writing by
any one of the
foregoing with the consent of the
Administrative Agent; and, with
respect to the financial covenants only, the
chief financial
officer or the treasurer of the
Borrower.
"Revolving Commitment" shall mean, with respect to each
Lender, the obligation of such Lender to
make Revolving Loans
to
the Borrower and to participate in Swingline Loans in an
aggregate principal amount not exceeding the
amount set forth
with respect to such Lender on Schedule II,
as such schedule
may
be amended pursuant to Section 2.24,
or in the case of a
Person
becoming a Lender after the Closing Date
through an assignment of
an existing Revolving Commitment, the amount
of the assigned
"Revolving Commitment" as provided in the Assignment and
Acceptance executed by such Person as an
assignee, as the
same
may be increased or deceased pursuant to
terms hereof.
"Revolving Commitment Termination Date" shall mean the
earliest of (i) August 26, 2010, (ii) the date
on which the
Revolving Commitments are terminated
pursuant to Section 2.8 and
(iii) the date on which all amounts outstanding under this
Agreement have been declared or have
automatically become due and
payable (whether by acceleration or
otherwise).
"Revolving Credit Exposure" shall mean, with respect to
any Lender at any time, the sum of the outstanding
principal
amount of such Lender's Revolving Loans and such Lender's
Swingline Exposure.
"Revolving Credit Note" shall mean a promissory note of
the Borrower payable to the order of a
requesting Lender in
the
principal amount of such Lender's Revolving Commitment, in
substantially the form of Exhibit A.
"Revolving
Loan" shall mean a
loan made by
a Lender
(other than the Swingline Lender) to the
Borrower under its
Revolving Commitment, which may either be a
Base Rate Loan or
a
Eurodollar Loan.
"S&P" shall mean
Standard & Poor's, a Division of the
McGraw Hill Companies.
"Subsidiary" shall
mean, with respect to
any Person
(the "parent"), any corporation, partnership,
joint venture,
limited liability company, association or other entity the
accounts of which would be consolidated
with those of the
parent
in the parent's consolidated financial statements if such
financial statements were prepared in
accordance with GAAP
(but
excluding any Variable Interest Entity) as
of such date, as
well
as any other corporation, partnership, joint
venture, limited
liability company, association or other entity (i) of which
securities or other ownership interests
representing more
than
50% of the equity or more than 50% of
the ordinary voting
power, or in the case of a partnership, more
than 50% of the
general partnership interests are, as of such date, owned,
controlled or held, or (ii) that is, as of
such date,
otherwise
controlled, by the parent or one or more subsidiaries
of the
parent or by the parent and one or more
subsidiaries of
the
parent. Unless otherwise indicated, all references to
"Subsidiary" hereunder shall mean a
Subsidiary of the Borrower.
"Swingline Commitment" shall mean the commitment of the
Swingline Lender to make Swingline Loans in an aggregate
principal amount at any time outstanding not to exceed
$5,000,000.
"Swingline Exposure"
shall mean, with respect to each
Lender, the principal amount of the
Swingline Loans in which such
Lender is legally obligated either to make
a Base Rate Loan or to
purchase a participation in accordance with
Section 2.5, which
shall equal such Lender's Pro Rata Share
of all outstanding
Swingline Loans.
"Swingline Lender"
shall mean SunTrust
Bank, or any
other Lender that may agree to make
Swingline Loans hereunder.
"Swingline Loan" shall mean a loan made to the Borrower
by the Swingline Lender under the Swingline
Commitment.
"Swingline
Note" shall mean the promissory note of the
Borrower payable to the order of the Swingline
Lender in the
principal amount of the Swingline
Commitment, substantially the
form of Exhibit B.
"Swingline Rate" shall mean, for any Interest Period,
the rate as offered by the Swingline
Lender and accepted by
the
Borrower. Borrower shall have no obligation
to accept this
rate
and Swingline Lender shall have no
obligation to provide it.
"Swingline Termination Date" shall mean the date that
is two (2) Business Days prior to the Revolving Commitment
Termination Date.
"Synthetic Lease" shall mean a lease transaction under
which the parties intend that (i) the lease
will be treated as an
"operating lease" by the lessee pursuant to Statement of
Financial Accounting Standards No. 13, as
amended and (ii)
the
lessee will be entitled to various tax and other benefits
ordinarily available to owners (as opposed to
lessees) of
like
property.
"Synthetic Lease Obligations" shall mean, with respect
to any Person, the sum of (i) all remaining
rental obligations of
such Person as lessee under Synthetic Leases that are
attributable to principal and, without
duplication,
(ii) all
rental and purchase price payment obligations
of such Person
under such Synthetic Leases assuming such
Person exercises
the
option to purchase the lease property at the
end of the
lease
term.
"Taxes" shall mean any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings
imposed by any Governmental Authority.
"Type", when used in
reference to a Loan or Borrowing,
refers to whether the rate of interest on
such Loan, or on
the
Loans comprising such Borrowing, is
determined by
reference to
the Adjusted LIBO Rate or the Base
Rate.
"Variable Interest Entity" shall mean a special purpose
entity that must be consolidated with the
Parent under GAAP.
"Variable Interest Entity Obligations" shall mean all
lease obligations owed by the Parent or any
of its Subsidiaries
to a Variable Interest Entity.
"Withdrawal Liability"
shall mean liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV
of ERISA.
Section 1.2.
Classifications
of Loans and Borrowings. For
purposes of this Agreement, Loans may be
classified and
referred
to by Class (e.g. a "Revolving Loan") or by Type (e.g. a
"Eurodollar Loan" or "Base Rate Loan") or
by Class and Type (e.g.
"Revolving Eurodollar Loan"). Borrowings also may be
classified
and referred to by Class (e.g.
"Revolving Borrowing") or by Type
(e.g. "Eurodollar Borrowing") or by Class and Type (e.g. "
Revolving Eurodollar Borrowing").
Section 1.3.
Accounting Terms
and Determination.
Unless
otherwise defined or specified herein, all
accounting terms
used
herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial
statements required to
be delivered hereunder shall be prepared,
in accordance with GAAP
as in effect from time to time, applied on a
basis consistent
with the most recent audited consolidated
financial statement
of
the Parent delivered pursuant to Section
5.1(a) of the
Parent
Credit Agreement; provided, that if the Borrower
notifies the
Administrative Agent that the Parent wishes
to amend any covenant
in Article VI of the Parent Credit Agreement to
eliminate the
effect of any change in GAAP on the
operation of such
covenant
(or if the Administrative Agent notifies
the Borrower that
the
Required Lenders (as defined in the Parent
Credit Agreement) wish
to amend Article VI of the Parent Credit
Agreement for such
purpose), then the Loan Parties' compliance
with such covenant
shall be determined on the basis of GAAP in
effect immediately
before the relevant change in GAAP became
effective, until either
such notice is withdrawn or such
covenant is amended in a manner
satisfactory to the Borrower, the Parent and the Required
Lenders.
Section 1.4. Terms Generally. The definitions
of terms herein
shall apply equally to the singular and
plural forms of the terms
defined. Whenever the context may require, any
pronoun shall
include the corresponding masculine,
feminine and neuter
forms.
The words "include", "includes" and
"including" shall be
deemed
to be followed by the phrase "without
limitation". The
word
"will" shall be construed to have the same
meaning and effect
as
the word "shall". In the computation of periods of
time from a
specified date to a later specified date,
the word "from"
means
"from and including" and the word "to"
means "to but excluding".
Unless the context requires otherwise (i)
any definition of
or
reference to any agreement, instrument or
other document
herein
shall be construed as referring to such
agreement, instrument
or
other document as it was originally
executed or as it may
from
time to time be amended, supplemented or
otherwise modified
(subject to any restrictions on such
amendments, supplements or
modifications set forth herein), (ii) any
reference herein to any
Person shall be construed to include such
Person's successors and
permitted assigns, (iii) the words "hereof", "herein" and
"hereunder" and words of similar import shall be
construed to
refer to this Agreement as a whole and not to
any particular
provision hereof, (iv) all references to Articles, Sections,
Exhibits and Schedules shall be construed
to refer to
Articles,
Sections, Exhibits and Schedules to this
Agreement and (v)
all
references to a specific time shall be
construed to refer to
the
time in the city and state of the Administrative Agent's
principal office, unless otherwise
indicated.
ARTICLE II
AMOUNT AND
TERMS OF THE COMMITMENTS
Section 2.1. General Description of Facilities.
Subject to and
upon the terms and conditions herein
set forth, (i) the
Lenders
hereby establish in favor of the Borrower
a revolving credit
facility pursuant to which the Lenders
severally agree (to
the
extent of such Lender's Revolving
Commitment) to make Revolving
Loans to the Borrower in accordance with
Section 2.2, (ii)
the
Swingline Lender agrees to make Swingline Loans
in accordance
with Section 2.4, and (iii) each Lender agrees
to purchase a
participation interest in the Swingline Loans
pursuant to the
terms and conditions hereof; provided, that
in no event shall the
aggregate principal amount of all
outstanding Revolving Loans and
Swingline Loans exceed at any time the Aggregate Revolving
Commitment Amount from time to time in
effect.
Section 2.2.
Revolving Loans.
Subject to the terms and
conditions set forth herein, each Lender
severally agrees to make
Revolving Loans, ratably in proportion to
its Pro Rata Share,
to
the Borrower, from time to time during
the Availability
Period,
in an aggregate principal amount
outstanding at any
time that
will not result in (a) such Lender's
Revolving Credit
Exposure
exceeding such Lender's Revolving Commitment
or (b) the sum
of
the aggregate Revolving Credit Exposures of
all Lenders exceeding
the Aggregate Revolving Commitment Amount. During the
Availability Period, the Borrower shall be
entitled to
borrow,
prepay and reborrow Revolving Loans in
accordance with the
terms
and conditions of this Agreement; provided,
that the Borrower may
not borrow or reborrow should there
exist a Default or Event of
Default.
Section 2.3. Procedure for Revolving
Borrowings. The
Borrower
shall give the Administrative Agent written
notice (or telephonic
notice promptly confirmed in writing) of
each Revolving Borrowing
substantially in the form of Exhibit 2.3 (a
"Notice of
Revolving
Borrowing") (x) prior to 1:00 p.m.
(Atlanta, Georgia time) on the
requested date of each Base Rate Borrowing
and (y) prior to
1:00
p.m. (Atlanta, Georgia time) at least three (3)
Business Days
prior to the requested date of each
Eurodollar Borrowing.
Each
Notice of Revolving Borrowing shall be irrevocable
and shall
specify: (i) the aggregate principal amount of
such Borrowing,
(ii) the date of such Borrowing (which
shall be a Business Day),
(iii) the Type of such Revolving Loan
comprising such Borrowing
and (iv) in the case of a Eurodollar
Borrowing, the duration of
the initial Interest Period applicable
thereto (subject to
the
provisions of the definition of Interest
Period). Each
Revolving
Borrowing shall consist entirely of Base
Rate Loans or Eurodollar
Loans, as the Borrower may request. The aggregate principal
amount of each Eurodollar Borrowing shall
be not less than
$2,500,000 or a larger multiple of $500,000, and
the aggregate
principal amount of each Base Rate Borrowing
shall not be
less
than $1,000,000 or a larger multiple of
$100,000; provided, that
Base Rate Loans made pursuant to Section 2.5
may be made in
lesser amounts as provided therein.
At no time shall the
total
number of Eurodollar Borrowings outstanding
at any time exceed
six. Promptly following the receipt of a
Notice of Revolving
Borrowing in accordance herewith, the
Administrative Agent
shall
advise each Lender of the details thereof
and the amount of
such
Lender's Revolving Loan to be made as part of the requested
Revolving Borrowing.
Section 2.4.
Swingline
Commitment. Subject to the terms and
conditions set forth herein, the Swingline
Lender agrees to
make
Swingline Loans to the Borrower, from time
to time from the
Closing Date to the Swingline Termination
Date, in an
aggregate
principal amount outstanding at any time
not to exceed the lesser
of (i) the Swingline Commitment then in
effect and
(ii) the
difference between the Aggregate Revolving
Commitment Amount
and
the aggregate Revolving Credit Exposures of all
Lenders. The
Borrower shall be entitled to borrow, repay and reborrow
Swingline Loans in accordance with the terms
and conditions
of
this Agreement.
Section 2.5.
Procedure for
Swingline Borrowing; Etc. (a) The
Borrower shall give the Administrative
Agent written notice
(or
telephonic notice promptly confirmed in writing) of each
Swingline Borrowing substantially in the form
of Exhibit 2.5
("Notice of Swingline Borrowing") prior to
2:00 p.m.
(Atlanta,
Georgia time) on the requested date of
each Swingline Borrowing.
Each Notice of Swingline Borrowing shall be
irrevocable and shall
specify: (i) the principal amount of such
Swingline Loan,
(ii)
the date of such Swingline Loan (which
shall be a Business
Day)
and (iii) the account of the Borrower to
which the proceeds
of
such Swingline Loan should be credited.
The Administrative Agent
will promptly advise the Swingline Lender
of each Notice of
Swingline Borrowing. Each Swingline Loan shall accrue
interest
at the Swingline Rate and shall have
an Interest Period (subject
to the definition thereof) as agreed
between the Borrower and the
Swingline Lender. The aggregate principal amount of each
Swingline Loan shall be not less than $250,000 or a larger
multiple of $1,000, or such other minimum
amounts agreed to
by
the Swingline Lender and the Borrower.
The Swingline Lender will
make the proceeds of each Swingline Loan available to the
Borrower in Dollars in immediately
available funds at the account
specified by the Borrower in the applicable
Notice of
Swingline
Borrowing not later than 4:00 p.m.
(Atlanta, Georgia time) on the
requested date of such Swingline Loan.
(b) The Swingline Lender, at any time
and from time to time in
its sole discretion, may, on behalf of the
Borrower (which hereby
irrevocably authorizes and directs the
Swingline Lender to act on
its behalf), give a Notice of Revolving Borrowing to the
Administrative Agent requesting the Lenders (including the
Swingline Lender) to make Base Rate Loans
in an amount equal
to
the unpaid principal amount of any
Swingline Loan. Each
Lender
will make the proceeds of its Base Rate Loan
included in
such
Borrowing available to the Administrative
Agent for the
account
of the Swingline Lender in accordance
with Section 2.6,
which
will be used solely for the repayment of
such Swingline Loan.
(c) If for any reason a Base Rate
Borrowing may not be (as
determined in the sole discretion of the
Administrative
Agent),
or is not, made in accordance with the
foregoing provisions, then
each Lender (other than the Swingline
Lender) shall purchase
an
undivided participating interest in such
Swingline Loan
in an
amount equal to its Pro Rata Share thereof
on the date that
such
Base Rate Borrowing should have occurred. On
the date of
such
required purchase, each Lender shall promptly transfer, in
immediately available funds, the amount of its participating
interest to the Administrative Agent for the
account of the
Swingline Lender. If such Swingline Loan bears
interest at a
rate other than the Base Rate, such Swingline Loan shall
automatically become a Base Rate Loan on the
effective date
of
any such participation and interest shall become payable on
demand.
(d) Each Lender's obligation to make a
Base Rate Loan pursuant
to Section 2.5(b) or to purchase the participating
interests
pursuant to Section 2.5(c) shall be absolute
and unconditional
and shall not be affected by any
circumstance, including without
limitation (i) any setoff, counterclaim,
recoupment, defense
or
other right that such Lender or any other
Person may
have or
claim against the Swingline Lender, the
Borrower or
any other
Person for any reason whatsoever, (ii) the
existence of a Default
or an Event of Default or the termination of any Lender's
Revolving Commitment, (iii) the existence
(or alleged existence)
of any event or condition which has had
or could reasonably
be
expected to have a Material Adverse Effect,
(iv) any breach
of
this Agreement or any other Loan
Document by the
Borrower, the
Administrative Agent or any Lender or (v)
any other circumstance,
happening or event whatsoever, whether or
not similar to any
of
the foregoing. If such amount is not
in fact made available
to
the Swingline Lender by any Lender, the
Swingline Lender shall be
entitled to recover such amount on demand from such Lender,
together with accrued interest thereon for
each day from the date
of demand thereof at the Federal Funds Rate
until the second
Business Day after such demand and at the
Base Rate at all
times
thereafter. Until such time as such Lender makes
its required
payment, the Swingline Lender shall be
deemed to continue to have
outstanding Swingline Loans in the amount of the unpaid
participation for all purposes of the Loan Documents. In
addition, such Lender shall be deemed to
have assigned any
and
all payments made of principal and
interest on its Loans and any
other amounts due to it hereunder, to the
Swingline Lender
to
fund the amount of such Lender's
participation interest in such
Swingline Loans that such Lender failed to
fund pursuant to
this
Section 2.5, until such amount has been
purchased in full.
Section 2.6. Funding of Borrowings.
(a) Each Lender will make available
each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in
immediately available funds by 3:30 p.m.
(Atlanta, Georgia
time)
to the Administrative Agent at the Payment
Office; provided, that
the Swingline Loans will be made as set forth in
Section 2.5.
The Administrative Agent will make
such Loans available
to the
Borrower by promptly crediting the amounts
that it receives,
in
like funds by the close of business on such
proposed date, to
an
account maintained by the Borrower with the
Administrative
Agent
or at the Borrower's option, by effecting a
wire transfer of such
amounts to an account designated by the Borrower to the
Administrative Agent.
(b) Unless the Administrative Agent
shall have been notified by
any Lender prior to 5:00 p.m. one (1)
Business Day prior to
the
date of a Borrowing in which such Lender
is participating
that
such Lender will not make available to
the Administrative
Agent
such Lender's share of such Borrowing,
the Administrative
Agent
may assume that such Lender has made such
amount available to the
Administrative Agent on such date, and the
Administrative
Agent,
in reliance on such assumption, may make available to the
Borrower on such date a corresponding amount. If such
corresponding amount is not in fact made available to the
Administrative Agent by such Lender on the date of such
Borrowing, the Administrative Agent shall
be entitled to
recover
such corresponding amount on demand from such
Lender together
with interest at the Federal Funds Rate
for up to two (2)
days
and thereafter at the rate specified for
such Borrowing. If
such
Lender does not pay such corresponding
amount forthwith upon
the
Administrative Agent's demand therefor, the
Administrative
Agent
shall promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to
the Administrative
Agent together with interest at the rate
specified for such
Bor
rowing. Nothing in this subsection
shall be deemed to
relieve
any Lender from its obligation to fund
its Pro Rata Share of any
Borrowing hereunder or to prejudice any
rights which the Borrower
may have against any Lender as a
result of any default
by such
Lender hereunder.
(c) All Revolving Borrowings shall
be made by the Lenders on the
basis of their respective Pro Rata Shares.
No Lender shall
be
responsible for any default by any other Lender in its
obligations hereunder, and each Lender
shall be obligated to make
its Loans provided to be made by it
hereunder, regardless of the
failure of any other Lender to make its
Loans hereunder.
Section 2.7. Interest Elections.
(a) Each Borrowing initially shall be
of the Type specified in
the applicable Notice of Borrowing, and in the case of a
Eurodollar Borrowing, shall have an initial
Interest Period
as
specified in such Notice of Borrowing.
Thereafter, the
Borrower
may elect to convert such Borrowing
into a different Type or to
continue such Borrowing, and in the case of a Eurodollar
Borrowing, may elect Interest Periods
therefor, all as
provided
in this Section 2.7. The Borrower may elect
different options
with respect to different portions of the
affected Borrowing,
in
which case each such portion shall be
allocated ratably among the
Lenders holding Loans comprising such
Borrowing, and the
Loans
comprising each such portion shall be considered a separate
Borrowing.
(b)
To make an election
pursuant to this Section 2.7, the
Borrower shall give the Administrative
Agent prior written notice
(or telephonic notice promptly confirmed in
writing) of each
Borrowing substantially in the form of
Exhibit 2.7 (a "Notice
of
Conversion/Continuation") that is to be
converted or
continued,
as the case may be, (x) prior to 1:00
p.m.(Atlanta, Georgia time)
on the requested date of a conversion
into a Base Rate Borrowing
and (y) prior to 1:00 p.m. (Atlanta, Georgia
time) three
(3)
Business Days prior to a continuation of or
conversion into
a
Eurodollar Borrowing. Each such Notice of
Conversion/Continuation
shall be irrevocable and shall specify (i)
the Borrowing to which
such Notice of Continuation/Conversion
applies and if
different
options are being elected with respect to
different portions
thereof, the portions thereof that are to
be allocated to
each
resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv)
shall be specified
for each resulting Borrowing); (ii) the
effective date of
the
election made pursuant to such Notice of
Continuation/Conversion,
which shall be a Business Day, (iii) whether the resulting
Borrowing is to be a Base Rate Borrowing or a Eurodollar
Borrowing; and (iv) if the resulting Borrowing is to be a
Eurodollar Borrowing, the Interest Period applicable thereto
after giving effect to such election,
which shall be
a period
contemplated by the definition of "Interest
Period". If any
such
Notice of Continuation/Conversion requests
a Eurodollar Borrowing
but does not specify an Interest Period,
the Borrower shall
be
deemed to have selected an Interest Period
of one month.
The
principal amount of any resulting Borrowing shall
satisfy the
minimum borrowing amount for Eurodollar
Borrowings and Base
Rate
Borrowings set forth in Section 2.3.
(c) If, on the expiration of any
Interest Period in respect of
any Eurodollar Borrowing, the Borrower
shall have failed to
deliver a Notice of Conversion/
Continuation, then, unless such
Borrowing is repaid as provided herein, the Borrower
shall be
deemed to have elected to convert such
Borrowing to a Base
Rate
Borrowing. No Borrowing may be converted
into, or continued as, a
Eurodollar Borrowing if a Default or an
Event of Default
exists,
unless the Administrative Agent and each of
the Lenders
shall
have otherwise consented in writing. No conversion of any
Eurodollar Loans shall be permitted except
on the last day of the
Interest Period in respect thereof.
(d) Upon receipt of any Notice of
Conversion/Continuation, the
Administrative Agent shall promptly notify each
Lender of the
details thereof and of such Lender's
portion of each
resulting
Borrowing.
Section 2.8. Optional Reduction and
Termination of Commitments.
(a) Unless previously terminated, all
Revolving Commitments
shall terminate on the Revolving Commitment
Termination
Date,
except that the Swingline Commitment shall
terminate on the
Swingline Termination Date.
(b) Upon at least three (3)
Business Days' prior written notice
(or telephonic notice promptly confirmed
in writing) to the
Administrative Agent (which notice shall be
irrevocable),
the
Borrower may reduce the Aggregate Revolving
Commitments in
part
or terminate the Aggregate Revolving Commitments in whole;
provided, that (i) any partial reduction
shall apply to
reduce
proportionately and permanently the
Revolving Commitment of each
Lender, (ii) any partial reduction
pursuant to this Section 2.8
shall be in an amount of at least $2,500,000 and
any larger
multiple of $500,000, and (iii) no such reduction shall be
permitted which would reduce the Aggregate
Revolving Commitments
to an amount less than the outstanding
Revolving Credit Exposures
of all Lenders. Any such reduction in the
Aggregate
Revolving
Commitments shall result in a proportionate
reduction (rounded to
the next lowest integral multiple of
$100,000) in the Swingline
Commitment.
Section 2.9. Repayment of Loans.
(a) The outstanding principal amount
of all Revolving Loans
shall be due and payable (together with
accrued and unpaid
interest thereon) on the Revolving
Commitment Termination Date.
(b) The principal amount of each
Swingline Borrowing shall be
due and payable (together with accrued
interest thereon) on the
earlier of (i) the last day of the Interest
Period applicable to
such Borrowing and (ii) the Swingline
Termination Date.
Section 2.10. Evidence of Indebtedness.
(a) Each Lender shall
maintain in accordance with its usual practice appropriate
records evidencing the Indebtedness of the Borrower to such
Lender resulting from each Loan made by
such Lender from time
to
time, including the amounts of principal and
interest payable
thereon and paid to such Lender from time to
time under this
Agreement. The Administrative Agent shall
maintain
appropriate
records in which shall be recorded (i) the
Revolving Commitment
of each Lender, (ii) the amount of each
Loan made hereunder
by
each Lender, the Class and Type thereof
and the Interest
Period
applicable thereto, (iii) the date of each
continuation
thereof
pursuant to Section 2.7, (iv) the date of
each conversion of
all
or a portion thereof to another Type
pursuant to Section 2.7, (v)
the date and amount of any principal
or interest due and payable
or to become due and payable from the
Borrower to each
Lender
hereunder in respect of such Loans and (vi)
both the date
and
amount of any sum received by the
Administrative Agent hereunder
from the Borrower in respect of the
Loans and each Len
