Exhibit 10.4
EXECUTION COPY
364-DAY CREDIT AGREEMENT
dated as of October 28, 2005
by and among
MOHAWK INDUSTRIES, INC.,
as Borrower,
the Banks referred to herein,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
SUNTRUST BANK,
as Syndication Agent,
and
JPMORGAN CHASE BANK, N.A., LEHMAN COMMERCIAL PAPER INC. and BANK OF AMERICA, N.A.,
each as a Documentation Agent
WACHOVIA CAPITAL MARKETS, LLC, and
SUNTRUST CAPITAL MARKETS, INC.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1 SECTION 1.01. Definitions 1 SECTION 1.02. Accounting Terms and Determinations 15 SECTION 1.03. References 16 SECTION 1.04. Use of Defined Terms 16 SECTION 1.05. Terminology 16 ARTICLE II THE CREDITS 16 SECTION 2.01. Commitments to Lend 16 SECTION 2.02. Method of Borrowing Syndicated Loans 17 SECTION 2.03. Continuation and Conversion Elections 19 SECTION 2.04. Notes 19 SECTION 2.05. Maturity of Loans 19 SECTION 2.06. Interest Rates 19 SECTION 2.07. Fees 21 SECTION 2.08. Optional Termination or Reduction of Commitments 21 SECTION 2.09. Mandatory Reduction and Termination of Commitments 21 SECTION 2.10. Optional Prepayments 22 SECTION 2.11. Mandatory Prepayments 22 SECTION 2.12. General Provisions as to Payments 23 SECTION 2.13. Computation of Interest and Fees 23 ARTICLE III CONDITIONS TO BORROWINGS 23 SECTION 3.01. Conditions to Closing 23 SECTION 3.02. Conditions to All Borrowings 25 ARTICLE IV REPRESENTATIONS AND WARRANTIES 25 SECTION 4.01. Corporate Existence and Power 25 SECTION 4.02. Corporate and Governmental Authorization; No Contravention 25 SECTION 4.03. Binding Effect 26 SECTION 4.04. Financial Information 26 SECTION 4.05. No Litigation 26 SECTION 4.06. Compliance with ERISA 26 SECTION 4.07. Taxes 26 SECTION 4.08. Subsidiaries 27 SECTION 4.09. Not an Investment Company 27 SECTION 4.10. Ownership of Property; Liens 27 SECTION 4.11. No Default 27 SECTION 4.12. Full Disclosure 27 SECTION 4.13. Environmental Matters 27 SECTION 4.14. Capital Stock 28 SECTION 4.15. Margin Stock 28 SECTION 4.16. Insolvency 28
i SECTION 4.17. OFAC 28 ARTICLE V COVENANTS 29 SECTION 5.01. Information 29 SECTION 5.02. Inspection of Property, Books and Records 30 SECTION 5.03. Debt to Capitalization Ratio 31 SECTION 5.04. Restricted Payments 31 SECTION 5.05. Investments 31 SECTION 5.06. Negative Pledge 31 SECTION 5.07. Maintenance of Existence; Lines of Business 32 SECTION 5.08. Dissolution 32 SECTION 5.09. Consolidations, Mergers and Sales of Assets 33 SECTION 5.10. Use of Proceeds 33 SECTION 5.11. Compliance with Laws; Payment of Taxes 33 SECTION 5.12. Insurance 34 SECTION 5.13. Change in Fiscal Year 34 SECTION 5.14. Maintenance of Property 34 SECTION 5.15. Environmental Notices 34 SECTION 5.16. Environmental Matters 34 SECTION 5.17. Environmental Release 34 SECTION 5.18. Debt of Subsidiaries 35 SECTION 5.19. Efforts to Obtain Replacement Permanent Financing 35 ARTICLE VI DEFAULTS 35 SECTION 6.01. Events of Default 35 SECTION 6.02. Notice of Default 37 SECTION 6.03. Crediting of Payments and Proceeds 38 ARTICLE VII THE AGENT 38 SECTION 7.01. Appointment; Powers and Immunities 38 SECTION 7.02. Reliance by Administrative Agent 39 SECTION 7.03. Defaults 39 SECTION 7.04. Rights of Administrative Agent and its Affiliates as a Bank 40 SECTION 7.05. Indemnification 40 SECTION 7.06. Intentionally Omitted 40 SECTION 7.07. Payee of Note Treated as Owner 40 SECTION 7.08. Nonreliance on Administrative Agent and Other Banks 41 SECTION 7.09. Failure to Act 41 SECTION 7.10. Resignation of Administrative Agent 41 ARTICLE VIII CHANGE IN CIRCUMSTANCES; TAXES; COMPENSATION 42 SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair 42 SECTION 8.02. Illegality 42 SECTION 8.03. Increased Cost and Reduced Return 43 SECTION 8.04. Base Rate Loans Substituted for Euro-Dollar Loans 44 SECTION 8.05. Compensation 44 SECTION 8.06. Taxes 45
ii SECTION 8.07. Replacement of Banks 47 ARTICLE IX MISCELLANEOUS 48 SECTION 9.01. Notices. 48 SECTION 9.02. No Waivers 49 SECTION 9.03. Expenses 49 SECTION 9.04. Indemnification; Waiver of Consequential Damages 49 SECTION 9.05. Sharing of Setoffs 50 SECTION 9.06. Amendments and Waivers 51 SECTION 9.07. No Margin Stock Collateral 52 SECTION 9.08. Successors and Assigns 52 SECTION 9.09. Confidentiality 54 SECTION 9.10. Representation by Banks 55 SECTION 9.11. Obligations Several 55 SECTION 9.12. Georgia Law 55 SECTION 9.13. Interpretation 55 SECTION 9.14. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION 55 SECTION 9.15. Counterparts 56 SECTION 9.16. Reversal of Payments 56 SECTION 9.17. Survival of Indemnities 56 SECTION 9.18. Integration 56 SECTION 9.19. USA Patriot Act 56
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Exhibits EXHIBIT A Form of Note EXHIBIT B Form of Opinion of Counsel for the Borrower EXHIBIT C Form of Assignment and Acceptance EXHIBIT D-1 Form of Notice of Borrowing EXHIBIT D-2 Form of Notice of Continuation or Conversion EXHIBIT E Form of Compliance Certificate
Schedules Schedule 1.01 Commitments and Lending Offices Schedule 4.05 Litigation Schedule 4.08 Subsidiaries Schedule 5.06 Existing Liens
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364-DAY CREDIT AGREEMENT
THIS 364-DAY CREDIT AGREEMENT dated as of October 28, 2005, by and among MOHAWK INDUSTRIES, INC., as Borrower, WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, and the other Banks from time to time party hereto.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions . The terms as defined in this Section 1.01 shall, for all purposes of this Agreement and any amendment hereto (except as herein otherwise expressly provided or unless the context otherwise requires), have the meanings set forth herein:
" Adjusted London Interbank Offered Rate" means, with respect to any Interest Period, a rate per annum equal to the quotient obtained (rounded upwards, if necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
" Administrative Agent" means Wachovia, in its capacity as administrative agent for the Banks hereunder, and its successors and permitted assigns in such capacity.
" Affected Bank" has the meaning set forth in Section 8.07 .
" Affiliate" means (a) any Person that directly, or indirectly through one or more intermediaries, controls the Borrower (a " Controlling Person" ), (b) any Person (other than the Borrower or a Subsidiary) which is controlled by or is under common control with a Controlling Person, or (c) any Person (other than a Subsidiary) of which the Borrower owns, directly or indirectly, 20% or more of the common stock or equivalent equity interests. As used herein, the term " control" means possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
" Agreement" means this 364-Day Credit Agreement, together with all amendments and modifications hereto.
" Aladdin" means Aladdin Manufacturing Corporation, a Delaware corporation.
" Applicable Margin" means at all times:
(a) for the period commencing on the Closing Date to and including the first Performance Pricing Determination Date, for each Base Rate Loan 0.0%, and for each Euro-Dollar Loan 0.625%; and
(b) from and after the first Performance Pricing Determination Date, for each Base Rate Loan and for each Euro-Dollar Loan, the percentage determined on each Performance Pricing Determination Date by reference to the table set forth below as to such type of Loan based on the Borrower' s senior unsecured long-term debt rating as determined by Moody' s and S&P and in effect as of such date (the " Debt Rating" ); provided , that (i) if either,
[364-Day Credit Agreement - Mohawk Industries, Inc.]
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but not both, of Moody' s or S&P shall not have in effect a Debt Rating, then the lower level corresponding to such single Debt Rating shall be used, and (ii) if both Moody' s and S&P shall not have in effect a Debt Rating, then the Borrower and the Banks shall negotiate in good faith to amend this definition to reflect the unavailability of ratings and, pending the effectiveness of any such amendment, the Applicable Margin shall be determined by reference to the Debt Rating most recently in effect prior to such event.
Level
Debt Rating
(S&P/Moody' s)
Base Rate
Loan
Euro-Dollar
Loan
I > A/A2 0.000 % 0.250 % II A-/A3 0.000 % 0.330 % III BBB+/Baa1 0.000 % 0.420 % IV BBB/Baa2 0.000 % 0.525 % V BBB-/Baa3 0.000 % 0.625 % VI BBB-/Ba1 or
BB+/Baa3 0.000 % 0.725 % VII A/A2 0.050 % II A-/A3 0.070 % III BBB+/Baa1 0.080 % IV BBB/Baa2 0.100 % V BBB-/Baa3 0.125 % VI BBB-/Ba1 or
BB+/Baa3 0.150 % VII < BB+/Ba1 0.175 %
Such facility fees shall accrue from and including the Closing Date to (but excluding) the Termination Date and shall be payable quarterly in arrears on each December 31, March 31, June 30, September 30 and on the Termination Date.
(b) Other Fees . The Borrower shall pay to the Administrative Agent, for the account and sole benefit of the Administrative Agent, such fees and other amounts at such times as mutually agreed in writing as of the Closing Date.
SECTION 2.08. Optional Termination or Reduction of Commitments . The Borrower may, upon at least 3 Business Days' notice to the Administrative Agent, terminate at any time, or proportionately reduce the Unused Commitments from time to time by an aggregate amount of at least $10,000,000 or any larger multiple of $1,000,000. Upon a reduction of the Unused Commitments, each Bank' s Commitments shall be permanently and ratably reduced.
SECTION 2.09. Mandatory Reduction and Termination of Commitments .
(a) The Commitments shall be permanently reduced in amounts equal to 100% of the aggregate Net Cash Proceeds from any issuance of Debt by the Borrower or any of its Subsidiaries (excluding Debt permitted pursuant to Section 5.18 ) and from any Equity Issuance, in each case issued in connection with a Capital Markets Transaction. Such reductions shall be made on the date of receipt of the Net Cash Proceeds of any such transaction.
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(b) The Commitments shall be permanently reduced in amounts equal to 100% of the aggregate Net Cash Proceeds from any Asset Disposition by the Borrower or any of its Subsidiaries made pursuant to Section 5.09(h) , to the extent that the Net Cash Proceeds from such Asset Disposition or series of related Asset Dispositions exceed $30,000,000. Such reduction shall be made on the date of receipt of the Net Cash Proceeds of any such transaction.
(c) The Commitments shall be permanently reduced in amounts equal to 100% of the aggregate Net Cash Proceeds from any one Insurance and Condemnation Event but only to the extent that (i) the Net Cash Proceeds from such Insurance and Condemnation Event exceed $30,000,000 and (ii) such Net Cash Proceeds have not been used to acquire, improve or repair assets used or useful in the business of the Borrower or any of its Subsidiaries within one hundred eighty (180) days after receipt thereof. Such reduction shall be made on the date of expiration of such one hundred eighty (180) day period.
(d) The Commitments shall terminate on the Termination Date and any Loans then outstanding (together with accrued interest thereon) shall be due and payable by the Borrower on such date.
SECTION 2.10. Optional Prepayments .
(a) The Borrower may, upon notice to the Administrative Agent on the same Business Day, prepay any Base Rate Borrowing in whole at any time, or from time to time in part in amounts aggregating at least $500,000 or any larger multiple of $100,000, by paying the principal amount to be prepaid together with accrued interest thereon to the date of prepayment.
(b) Subject to Section 8.05 , the Borrower may, upon at least 3 Business Days' notice to the Administrative Agent, prepay any Euro-Dollar Loan in whole at any time, or from time to time in part, prior to the maturity thereof, in amounts aggregating at least $2,000,000 or any larger multiple of $100,000, by paying the principal amount to be prepaid together with accrued interest thereon to the date of the prepayment.
(c) Any such notice under this Section shall specify:
(i) the date of such prepayment, which shall be a Business Day, and
(ii) the aggregate amount of such prepayment.
(d) Upon any Administrative Agent' s receipt of a notice of prepayment pursuant to this Section, such notice shall not thereafter be revocable by the Borrower. No repayment or prepayment pursuant to this Section shall affect any of the Borrower' s obligations under any Hedging Agreement.
SECTION 2.11. Mandatory Prepayments . On each date on which the Commitments are reduced pursuant to Section 2.08 or Section 2.09 , the Borrower shall repay or prepay such
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principal amount of the outstanding Loans, if any (together with interest accrued thereon), as may be necessary so that after such payment the aggregate unpaid principal amount of the Loans does not exceed the aggregate amount of the Commitments as then reduced. Each repayment pursuant to Section 2.11 shall be accompanied by any amount required to be paid pursuant to Section 8.05 .
SECTION 2.12. General Provisions as to Payments .
(a) The Borrower shall make each payment of principal, interest and fees hereunder without defense, setoff or counterclaim to the Administrative Agent not later than 11:00 A.M. (Charlotte,
North Carolina time) on the date when due, in immediately available funds at its Lending Office.
(b) Whenever any payment of principal of, or interest on, the Base Rate Loans or of fees shall be due on a day which is not a Business Day, the date for payment thereof shall be extended to the next succeeding Business Day. Whenever any payment of principal of or interest on, the Euro-Dollar Loans shall be due on a day which is not a Business Day, the date for payment thereof shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case the date for payment thereof shall be the next preceding Business Day.
SECTION 2.13. Computation of Interest and Fees . Interest on Base Rate Loans shall be computed on the basis of a year of 365/366 days and paid for the actual number of days elapsed (including the first day but excluding the last day). Interest on Euro-Dollar Loans shall be computed on the basis of a year of 360 days and paid for the actual number of days elapsed, calculated as to each Interest Period from and including the first day thereof to but excluding the last day thereof. Any fees payable hereunder shall be computed on the basis of a year of 360 days and paid for the actual number of days elapsed (including the first day but excluding the last day).
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to Closing . The obligations of each Bank under this Agreement are subject to the satisfaction of the conditions set forth in Section 3.02 and each of the following conditions:
(a) Executed Loan Documents . Receipt by the Administrative Agent of the following (in sufficient number of counterparts (except as to the Notes) for delivery of a counterpart to each Bank and retention of one counterpart by the Administrative Agent):
(i) a written letter agreement evidencing the payment in full and termination of the Existing Credit Agreement;
(ii) from each of the parties hereto a duly executed counterpart of this Agreement;
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(iii) a duly executed Note by the Borrower for the account of each Bank complying with the provisions of Section 2.04 ;
(iv) an opinion of
Alston & Bird LLP counsel for the Borrower, dated as of the Closing Date, substantially in the form of Exhibit B ;
(v) the Borrower' s most recent audited consolidated financial statements, including, without limitation, a balance sheet and income statement and its most recent 10-K filed with the Securities and Exchange Commission;
(vi) a certificate, dated as of the Closing Date, signed by a Responsible Officer of the Borrower, certifying (i) that no Default has occurred and is continuing on the Closing Date and (ii) that the representations and warranties of the Borrower contained in Article IV are true in all material respects on and as of the Closing Date;
(vii) all documents which the Administrative Agent or any Bank may reasonably request relating to the existence of the Borrower, the corporate authority for and the validity of the Loan Documents to which the Borrower is a party, and any other matters relevant thereto, all in form and substance satisfactory to the Administrative Agent, including, without limitation, a certificate of incumbency of the Borrower, signed by the Secretary or an Assistant Secretary of the Borrower, certifying as to the names, true signatures and incumbency of the officer or officers of the Borrower, authorized to execute and deliver the Loan Documents, and certified copies of the following items as to the Borrower: (i) its Certificate of Incorporation, (ii) its Bylaws, (iii) a certificate of the Secretary of State of the State of Delaware as to the good standing of the Borrower as a Delaware corporation, and (iv) the action taken by its Board of Directors (or a duly authorized committee thereof) authorizing its execution, delivery and performance of the Loan Documents to which it is a party; and
(viii) a Notice of Borrowing, if necessary.
(b) No Injunction, Etc . No action, suit, investigation or proceeding shall be pending or threatened in writing before any court, arbitrator or governmental authority that could reasonably be expected to materially and adversely affect any transaction contemplated hereby (including, without limitation, the Unilin Acquisition);
(c) Unilin Acquisition .
(i) All regulatory and third-party approvals necessary for the consummation of the Unilin Acquisition shall have been obtained and remain in effect; and
(ii) The Borrower shall have provided to the Administrative Agent copies of such additional documents and information relating to the Unilin Acquisition and the Unilin Purchase Agreement as the Administrative Agent shall reasonably request.
(d) Closing of Five Year Credit Facility . The Five Year Credit Facility shall be closed contemporaneously with this Agreement on the terms and conditions set forth therein.
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SECTION 3.02. Conditions to All Borrowings . The obligation of each Bank to make a Loan on the occasion of each Borrowing is subject to the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a Notice of Borrowing;
(b) no Default or Event of Default shall have occurred and be continuing immediately after giving effect to such Borrowing;
(c) all representations and warranties contained in Article IV of this Agreement (other than those contained in Sections 4.04(b) and 4.05 ), shall be true on and as of the date of such Borrowing except for changes permitted by this Agreement and except to the extent they relate solely to an earlier date; provided , that with respect to those contained in Sections 4.01 , 4.06 , 4.11 , 4.12 and 4.13 , the determination of whether any Material Adverse Effect has occurred as set forth therein shall be made solely by the Borrower, in its reasonable, good faith judgment; and
(d) immediately after such Borrowing, the sum of the aggregate outstanding principal amount of the Loans will not exceed the amount of the aggregate Commitments.
Each Borrowing hereunder shall be deemed to be a representation and warranty by the Borrower on the date thereof as to the facts specified in paragraphs (b), (c) and (d) of this Section.
SECTION 3.03. Condition Subsequent . Within two (2) Business Days following the Closing Date, the Unilin Acquisition shall have been consummated.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power . The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, is duly qualified to transact business in every jurisdiction where, by the nature of its business, such qualification is necessary and where failure to be so qualified could have or create a reasonable possibility of causing a Material Adverse Effect, and has all corporate powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No Contravention . The execution, delivery and performance by the Borrower of this Agreement, the Notes and the other Loan Documents to which it is a party (i) are within its corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) require no action by or in respect of or filing with, any governmental body, agency or official (other than routine filings with the Securities and Exchange Commission), (iv) do not contravene, or constitute a default under, any provision of applicable law or regulation or of the certificate of incorporation or by-laws of the Borrower or of any agreement, judgment, injunction, order, decree or other instrument binding upon the Borrower or any of its Subsidiaries, and (v) do not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
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SECTION 4.03. Binding Effect . This Agreement constitutes a valid and binding agreement of the Borrower enforceable in accordance with its terms, and the Notes and the other Loan Documents, when executed and delivered in accordance with this Agreement, will constitute valid and binding obligations of the Borrower (provided that the Borrower is a party to any such Loan Document) enforceable in accordance with their respective terms, provided that the enforceability hereof and thereof is subject in each case to general principles of equity and to bankruptcy, insolvency and similar laws affecting the enforcement of creditors' rights generally.
SECTION 4.04. Financial Information .
(a) The consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of December 31, 2004, and the related consolidated statements of income, shareholders' equity and cash flows for the Fiscal Year then ended, reported on by KPMG LLP, copies of which have been delivered to each of the Banks, and the unaudited consolidated financial statements of the Borrower for the interim period ended July 2, 2005, copies of which have been delivered to each of the Banks, fairly present in all material respects, in conformity with GAAP, the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such dates and their consolidated results of operations and cash flows for such periods stated.
(b) Since December 31, 2004, there has been no event, act, condition or occurrence having, or which could reasonably be expected to have a Material Adverse Effect.
SECTION 4.05. No Litigation . Except as set forth on Schedule 4.05 , as of the date hereof, there is no action, suit, proceeding or investigation pending, or to the knowledge of the Borrower threatened in writing, against or affecting the Borrower or any of its Subsidiaries before any court or arbitrator or any governmental body, agency or official which could reasonably be expected to have a Material Adverse Effect.
SECTION 4.06. Compliance with ERISA .
(a) The Borrower and each member of the Controlled Group have fulfilled their obligations under the minimum funding standards of ERISA and the Code with respect to each Plan and are in compliance with the presently applicable provisions of ERISA and the Code (except where such noncompliance could not reasonably be expected to have a Material Adverse Effect), and have not incurred any liability to the PBGC under Title IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled Group is or ever has been obligated to contribute to any Multiemployer Plan.
SECTION 4.07. Taxes . There have been filed on behalf of the Borrower and its Subsidiaries all Federal, state and local income, excise, property and other tax returns which are required to be filed by them and all taxes due pursuant to such returns or pursuant to any assessment received by or on behalf of the Borrower or any Subsidiary have been paid or valid and effective extensions therefor have been obtained. The charges, accruals and reserves on the books of the Borrower and its Subsidiaries in respect of taxes or other governmental charges are, in the opinion of the Borrower, adequate. United States income tax returns of the Borrower and its Subsidiaries' have been examined and closed through the Fiscal Year ended 1994.
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SECTION 4.08. Subsidiaries . Each of the Borrower' s Subsidiaries is duly organized or formed, validly existing and in good standing under the laws of the jurisdiction of its creation and organization, and has all powers (by virtue of its creation and organization) and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted. As of the date hereof, the Borrower has no Subsidiaries except for those Subsidiaries listed on Schedule 4.08 (assuming the Unilin Acquisition has been consummated), which accurately sets forth each such Subsidiary' s complete name and jurisdiction of creation and organization.
SECTION 4.09. Not an Investment Company . The Borrower is not an " investment company" within the meaning of the Investment Company Act of 1940, as amended.
SECTION 4.10. Ownership of Property; Liens . Each of the Borrower and its Consolidated Subsidiaries has title to its properties sufficient for the conduct of its business, and none of such property is subject to any Lien except as permitted in Section 5.06 .
SECTION 4.11. No Default . Neither the Borrower nor any of its Consolidated Subsidiaries is in default under or with respect to any agreement, instrument or undertaking to which it is a party or by which it or any of its property is bound which could reasonably be expected to have or cause a Material Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION 4.12. Full Disclosure . All information heretofore furnished by the Borrower to any Bank for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all such information hereafter furnished by the Borrower to any Bank will be, true, accurate and complete in every material respect or based on reasonable estimates on the date as of which such information is stated or certified. The Borrower has disclosed to the Banks in writing any and all facts which would have or create a reasonable possibility of causing a Material Adverse Effect.
SECTION 4.13. Environmental Matters .
(a) To the best knowledge of the Borrower, after due inquiry (which does not necessarily mean the performance of a phase I environmental audit), (i) neither the Borrower nor any Subsidiary is subject to any Environmental Liability and (ii) neither the Borrower nor any Subsidiary has been designated as a potentially responsible party under CERCLA or under any state statute similar to CERCLA in respect of any matters that could reasonably be expected to have a Material Adverse Effect. To the best knowledge of the Borrower, after due inquiry (which does not necessarily mean the per ...