Exhibit 10
CREDIT AGREEMENT
Dated as of June 3, 2002
among
DYCOM INDUSTRIES, INC.
as Borrower,
CERTAIN DOMESTIC SUBSIDIARIES OF THE BORROWER
FROM TIME TO TIME PARTIES HERETO
as Guarantors,
THE LENDERS NAMED HEREIN,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
and
BANK OF AMERICA, N.A.,
as Syndication Agent
FIRST UNION SECURITIES, INC.,
acting under the tradename WACHOVIA SECURITIES,
as Lead Arranger and Book Manager
TABLE OF CONTENTS
SECTION 1 DEFINITIONS ........................................................................................... 1
1.1 Definitions.........................................................................1
1.2 Computation of Time Periods........................................................19
1.3 Accounting Terms...................................................................19
SECTION 2 CREDIT FACILITY .......................................................................................19
2.1 Revolving Loans....................................................................19
2.2 Letter of Credit Subfacility.......................................................21
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES.........................................................24
3.1 Default Rate.......................................................................24
3.2 Extension and Conversion...........................................................25
3.3 Voluntary Repayments and Mandatory Prepayments.....................................25
3.4 Termination and Reduction of Commitments...........................................26
3.5 Fees...............................................................................26
3.6 Computation of Interest and Fees...................................................27
3.7 Pro Rata Treatment and Payments....................................................27
3.8 Non-receipt of Funds by the Administrative Agent...................................29
3.9 Inability to Determine Interest Rate...............................................29
3.10 Illegality.........................................................................30
3.11 Requirements of Law................................................................30
3.12 Indemnity..........................................................................32
3.13 Taxes..............................................................................32
3.14 Indemnification; Nature of Issuing Lender's Duties.................................35
3.15 Replacement of Lenders; Other Limitations..........................................36
SECTION 4 CONDITIONS ............................................................................................37
4.1 Conditions to Closing..............................................................37
4.2 Conditions to All Extensions of Credit.............................................39
SECTION 5 REPRESENTATIONS AND WARRANTIES.........................................................................39
5.1 Financial Condition................................................................39
5.2 No Material Adverse Change.........................................................40
5.3 Organization; Existence............................................................40
5.4 Power; Authorization; Enforceable Obligations......................................40
5.5 Conflict...........................................................................41
5.6 No Material Litigation.............................................................41
5.7 No Default.........................................................................41
5.8 Taxes..............................................................................41
5.9 Erisa..............................................................................41
5.10 Governmental Regulations, Etc......................................................42
5.11 Subsidiaries.......................................................................42
5.12 Use of Proceeds....................................................................42
5.13 Compliance With Laws; Contractual Obligations......................................43
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5.14 Accuracy and Completeness of Information...........................................43
5.15 Environmental Matters..............................................................43
5.16 Solvency...........................................................................44
5.17 No Burdensome Restrictions.........................................................44
5.18 Material Contracts.................................................................44
5.19 Insurance..........................................................................45
SECTION 6 AFFIRMATIVE COVENANTS..................................................................................45
6.1 Financial Statements...............................................................45
6.2 Certificates; Other Information....................................................46
6.3 Notices............................................................................48
6.4 Maintenance of Existence; Compliance With Laws; Contractual Obligations............48
6.5 Maintenance of Property; Insurance.................................................49
6.6 Inspection of Property; Books and Records; Discussions.............................49
6.7 Financial Covenants................................................................49
6.9 Additional Guarantors..............................................................50
6.10 Payment of Obligations.............................................................50
6.11 Environmental Laws.................................................................50
SECTION 7 NEGATIVE COVENANTS ....................................................................................51
7.1 Indebtedness.......................................................................51
7.2 Liens..............................................................................52
7.3 Nature of Business.................................................................52
7.4 Consolidation, Merger, Sale or Purchase of Assets, Etc.............................52
7.5 Advances, Investments and Loans....................................................53
7.6 Transactions With Affiliates.......................................................53
7.7 Fiscal Year; Organizational Documents; Material Contracts..........................53
7.8 Limitation On Restricted Actions...................................................53
7.9 Restricted Payments................................................................54
7.10 Sale Leasebacks....................................................................54
7.11 No Further Negative Pledges........................................................54
SECTION 8 EVENTS OF DEFAULT .....................................................................................55
8.1 Events of Default..................................................................55
8.2 Acceleration; Remedies.............................................................57
SECTION 9 AGENCY PROVISIONS .....................................................................................58
9.1 Appointment........................................................................58
9.2 Delegation of Duties...............................................................58
9.3 Exculpatory Provisions.............................................................58
9.4 Reliance by Administrative Agent...................................................59
9.5 Notice of Default..................................................................59
9.6 Non-reliance On Administrative Agent and Other Lenders.............................60
9.7 Indemnification....................................................................60
9.8 Administrative Agent in Its Individual Capacity....................................61
9.9 Successor Administrative Agent.....................................................61
9.10 Other Agents, Arrangers and Managers...............................................61
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SECTION 10 GUARANTY .............................................................................................62
10.1 The Guaranty.......................................................................62
10.2 Bankruptcy.........................................................................62
10.3 Nature of Liability................................................................63
10.4 Independent Obligation.............................................................63
10.5 Authorization......................................................................63
10.6 Reliance...........................................................................63
10.7 Waiver.............................................................................64
10.8 Limitation On Enforcement..........................................................65
10.9 Confirmation of Payment............................................................65
SECTION 11 MISCELLANEOUS ........................................................................................65
11.1 Amendments and Waivers.............................................................65
11.2 Notices............................................................................67
11.3 No Waiver; Cumulative Remedies.....................................................68
11.4 Survival of Representations and Warranties.........................................68
11.5 Payment of Expenses and Taxes......................................................68
11.6 Successors and Assigns; Participations; Purchasing Lenders.........................69
11.7 Adjustments; Set-off...............................................................72
11.8 Table of Contents and Section Headings.............................................73
11.9 Counterparts.......................................................................73
11.10 Effectiveness......................................................................73
11.11 Severability.......................................................................73
11.12 Integration........................................................................73
11.13 Governing Law......................................................................73
11.14 Consent to Jurisdiction and Service of Process.....................................74
11.15 [Intentionally Deleted]............................................................74
11.16 Confidentiality....................................................................74
11.17 Acknowledgments....................................................................75
11.18 Waivers of Jury Trial..............................................................75
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SCHEDULES
Schedule 1.1-A Form of Account Designation Letter
Schedule 1.1-B Permitted Liens
Schedule 1.1-C Existing Letters of Credit
Schedule 2.1(a) Schedule of Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Note
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 3.13 3.13 Certificate
Schedule 4.1(d) Material Legal Proceedings
Schedule 4.1(e) Form of Secretary's Certificate
Schedule 5.2 Significant Occurrences
Schedule 5.11 Subsidiaries
Schedule 5.15 Environmental Matters
Schedule 5.18 Material Contracts
Schedule 5.19 Insurance
Schedule 6.2(b) Form of Officer's Compliance Certificate
Schedule 6.9 Form of Joinder Agreement
Schedule 7.1(b) Indebtedness
Schedule 11.2 Schedule of Lenders' Lending Offices
Schedule 11.6(c) Form of Commitment Transfer Supplement
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of June 3, 2002 (the "CREDIT
AGREEMENT"), is by and among DYCOM INDUSTRIES, INC., a Florida corporation (the
"BORROWER"), those Domestic Subsidiaries of the Borrower listed on the signature
pages hereto and as may from time to time become a party hereto (collectively
the "GUARANTORS" and individually, a "Guarantor"), the lenders named herein and
such other lenders as may become a party hereto (the "LENDERS" and individually,
a "LENDER"), WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent for
the Lenders (in such capacity, the "ADMINISTRATIVE AGENT") and BANK OF AMERICA,
N.A., as Syndication Agent.
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders make loans and
other financial accommodations to the Borrower in the initial aggregate amount
of $200,000,000, as more particularly described herein; and
WHEREAS, the Lenders have agreed to make such loans and other financial
accommodations to the Borrower on the terms and conditions contained herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 DEFINITIONS.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"ACCOUNT DESIGNATION LETTER" means the Notice of Account Designation
Letter dated the Closing Date from the Borrower to the Administrative Agent in
substantially the form attached hereto as SCHEDULE 1.1-A.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term in
the first paragraph hereof, together with any successors or assigns.
"ADMINISTRATIVE AGENT'S FEES" has the meaning assigned to such term in
Section 3.5(d).
"AFFILIATE" means as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, a Person shall be deemed to be
"controlled by" a Person if such Person possesses, directly or indirectly, power
either (a) to vote 10% or more of the securities having ordinary
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voting power for the election of directors of such Person or (b) to direct or
cause the direction of the management and policies of such Person whether by
contract or otherwise.
"AGGREGATE REVOLVING COMMITTED AMOUNT" means the aggregate amount of
Commitments in effect from time to time, being initially TWO HUNDRED MILLION
DOLLARS ($200,000,000).
"ALTERNATE BASE RATE" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) equal to
the greater of (a) the Federal Funds Rate in effect on such day PLUS 1/2 of 1%
or (b) the Prime Rate in effect on such day. If for any reason the
Administrative Agent shall have reasonably determined (which determination shall
be conclusive absent manifest error) that it is unable after due inquiry to
ascertain the Federal Funds Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms hereof, the Alternate Base Rate shall be determined
without regard to clause (a) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Rate
shall be effective on the effective date of such change in the Prime Rate or the
Federal Funds Rate, respectively.
"ALTERNATE BASE RATE LOANS" means Loans that bear interest at an
interest rate based on the Alternate Base Rate.
"APPLICABLE PERCENTAGE" shall mean, for any day, the rate per annum set
forth below opposite the applicable level then in effect, it being understood
that the Applicable Percentage for (i) Revolving Loans that are Alternate Base
Rate Loans shall be the percentage set forth under the column "Alternate Base
Rate Margin for Revolving Loans", (ii) Revolving Loans that are LIBOR Rate Loans
shall be the percentage set forth under the column "LIBOR Rate Margin for
Revolving Loans and Letter of Credit Fee", (iii) the Letter of Credit Fee shall
be the percentage set forth under the column "LIBOR Rate Margin for Revolving
Loans and Letter of Credit Fee", and (iv) the Commitment Fee shall be the
percentage set forth under the column "Commitment Fee":
Alternate LIBOR Rate
Base Rate Margin for
Margin for Revolving Loans
Leverage Revolving and Letter of Commitment
Level Ratio Loans Credit Fee Fee
----- ----------------- ---------- --------------- ----------
I > 1.50 to 1.0 0.50% 2.00% 0.50%
-
II < 1.50 to 1.0 but 0.25% 1.50% 0.50%
> 0.75 to 1.0
-
III < 0.75 to 1.0 0.00% 1.25% 0.50%
The Applicable Percentage shall, in each case, be determined and
adjusted quarterly on the date five (5) Business Days after the date on which
the Administrative Agent has received from the Borrower the financial
information and certifications required to be delivered to the Administrative
Agent and the Lenders in accordance with the provisions of Sections 6.1(a) and
2
(b) and Section 6.2(b) (each an "INTEREST DETERMINATION DATE"). Such Applicable
Percentage shall be effective from such Interest Determination Date until the
next such Interest Determination Date. The initial Applicable Percentages shall
be based on Level III until the first Interest Determination Date occurring
after the delivery of the officer's compliance certificate pursuant to Section
6.2(a) for the quarter ending July 31, 2002. After the Closing Date, if the
Borrower shall fail to provide the quarterly financial information and
certifications in accordance with the provisions of Sections 6.1(a) and (b) and
Section 6.2(b), the Applicable Percentage from such Interest Determination Date
shall, on the date five (5) Business Days after the date by which the Borrower
was so required to provide such financial information and certifications to the
Administrative Agent and the Lenders, be based on Level I until such time as
such information and certifications are provided, whereupon the Level shall be
determined by the then current Leverage Ratio.
"BANKRUPTCY CODE" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"BORROWER" means Dycom Industries, Inc., a Florida corporation, as
referenced in the opening paragraph, its successors and permitted assigns.
"BUSINESS DAY" means any day other than a Saturday, Sunday or legal
holiday on which commercial banks are open for business in Charlotte, North
Carolina and New York, New York; except that when used in connection with a
LIBOR Rate Loan, such day shall also be a day on which dealings between banks
are carried on in London, England in deposits of Dollars.
"CAPITAL LEASE" means, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that Person.
"CAPITAL STOCK" means (i) in the case of a corporation, capital stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited), (iv) in the case of a limited liability company,
membership interests and (v) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distribution of assets of, the issuing Person.
"CASH EQUIVALENTS" shall mean (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition ("GOVERNMENT OBLIGATIONS"), (ii)
U.S. dollar denominated (or foreign currency fully hedged) time deposits,
certificates of deposit, Eurodollar time deposits and Eurodollar certificates of
deposit of (y) any domestic commercial bank of recognized standing having
capital and surplus in excess of $250,000,000 or (z) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or
from Moody's is at least P-1 or the equivalent thereof (any such bank being an
"APPROVED BANK"), in each case with maturities of not more than 364 days from
the date of acquisition, (iii) commercial paper and variable or fixed rate notes
issued by any
3
Approved Bank (or by the parent company thereof) or any variable rate notes
issued by, or guaranteed by any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody's and maturing within six months of the date of acquisition,
(iv) variable rate demand notes (low floaters) to the extent such notes may be
sold at par upon seven days notice and so long as such obligations shall have
been provided credit support by the issuance of a letter of credit from an
Approved Bank, (v) repurchase agreements with a bank or trust company (including
a Lender) or a recognized securities dealer having capital and surplus in excess
of $500,000,000 for direct obligations issued by or fully guaranteed by the
United States of America and (vi) obligations of any state of the United States
or any political subdivision thereof for the payment of the principal and
redemption price of and interest on which there shall have been irrevocably
deposited Government Obligations maturing as to principal and interest at times
and in amounts sufficient to provide such payment.
"CHANGE OF CONTROL" means (a) any Person or two or more Persons acting
in concert shall have acquired "beneficial ownership," directly or indirectly,
of, or shall have acquired by contract or otherwise, or control over, Voting
Stock of the Borrower (or other securities convertible into such Voting Stock)
representing 30% or more of the combined voting power of all Voting Stock of the
Borrower, or (b) Continuing Directors shall cease for any reason to constitute a
majority of the members of the board of directors of the Borrower then in
office. As used herein, "beneficial ownership" shall have the meaning provided
in Rule 13d-3 of the Securities and Exchange Commission under the Securities Act
of 1934.
"CLOSING DATE" means the date hereof.
"CODE" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations issued
thereunder, in each case as in effect from time to time. References to sections
of the Code shall be construed also to refer to any successor sections.
"COMMITMENT" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and issue Letters of Credit in an aggregate
principal amount at any time outstanding of up to such Lender's Revolving
Committed Amount as specified in SCHEDULE 2.1(a), as such amount may be reduced
from time to time in accordance with the provisions hereof.
"COMMITMENT FEE" has the meaning set forth in Section 3.5(a).
"COMMITMENT PERCENTAGE" means, for each Lender, a fraction (expressed
as a decimal) the numerator of which is the Commitment of such Lender at such
time and the denominator of which is the Aggregate Revolving Committed Amount at
such time. The initial Commitment Percentages are set out on SCHEDULE 2.1(a).
"COMMITMENT PERIOD" means the period from and including the Closing
Date to but not including the earlier of (i) the Maturity Date, or (ii) the date
on which the Commitments terminate in accordance with the provisions of this
Credit Agreement.
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"COMMITMENT TRANSFER SUPPLEMENT" means a Commitment Transfer
Supplement, substantially in the form of SCHEDULE 11.6(c).
"COMMONLY CONTROLLED ENTITY" means an entity, whether or not
incorporated, that for purposes of Title IV of ERISA, is under common control
with the Borrower within the meaning of Section 4001 of ERISA or is part of a
group which includes the Borrower and which is treated as a single employer
under Section 414 of the Code.
"CONSOLIDATED CAPITAL EXPENDITURES" shall mean, for any period, all
capital expenditures of the Borrower and its Subsidiaries on a consolidated
basis for such period, as determined in accordance with GAAP. The term
"Consolidated Capital Expenditures" shall not include capital expenditures in
respect of the reinvestment of proceeds derived from Recovery Events received by
the Borrower and its Subsidiaries to the extent that such reinvestment is
permitted under the Credit Documents.
"CONSOLIDATED EBITDA" means, for the applicable period, the sum of (i)
Consolidated Net Income for such period, PLUS (ii) an amount which, in the
determination of Consolidated Net Income for such period, has been deducted for
(A) the interest expense for such period (including, without limitation, the
interest component of payments under Capital Leases) deducted in determining
Consolidated Net Income, (B) the income tax expense for such period deducted in
determining Consolidated Net Income, (C) the aggregate amount of the
depreciation expense and amortization expense for such period to the extent
deducted in determining Consolidated Net Income and (D) any extraordinary items
of loss (or MINUS any extraordinary items of gain), in each case determined for
the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP. Unless expressly indicated otherwise, the applicable period shall be for
the four consecutive quarters ending as of the date of computation.
"CONSOLIDATED FUNDED DEBT" means Funded Debt of the Borrower and its
Subsidiaries on a consolidated basis.
"CONSOLIDATED INTEREST EXPENSE" means, for the applicable period, all
interest expense (excluding amortization of debt discount and premium but
including the interest component under Capital Leases) of the Borrower and its
Subsidiaries for such period. Unless expressly indicated otherwise, the
applicable period shall be for the four consecutive quarters ending as of the
date of computation.
"CONSOLIDATED NET INCOME" means, for the applicable period, net income
of the Borrower and its Subsidiaries on a consolidated basis. Unless expressly
indicated otherwise, the applicable period shall be for the four consecutive
quarters ending on the date of computation.
"CONSOLIDATED TANGIBLE NET WORTH" means, as of any date of
computation, (i) Consolidated Total Tangible Assets MINUS (ii) the total
liabilities of the Borrower and its Subsidiaries on a consolidated basis as
determined in accordance with GAAP.
"CONSOLIDATED TOTAL TANGIBLE ASSETS" means, on the date of computation,
(i) the amount of the Borrower's consolidated total assets MINUS (ii) the amount
of the Borrower's consolidated
5
intangible assets, including, without limitation, deferred costs associated with
goodwill, intellectual property, franchises, organizational expenses, deferred
financing charges, debt acquisition costs, start-up costs, pre-opening costs,
prepaid pension costs or any other deferred charges, in each case determined for
the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP.
"CONTINUING DIRECTORS" means, during any period of up to 24 consecutive
months commencing after the Closing Date, individuals who at the beginning of
such 24 month period were directors of the Borrower (together with any new
director whose election by the Borrower's board of directors or whose nomination
for election by the Borrower's shareholders was approved by a vote of at least
two-thirds of the directors then still in office who either were directors at
the beginning of such period or whose election or nomination for election was
previously so approved).
"CREDIT DOCUMENTS" means a collective reference to this Credit
Agreement, the Notes, any Joinder Agreement, the Fee Letter, the LOC Documents
and all other related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto.
"CREDIT PARTY" means any of the Borrower or the Guarantors.
"CREDIT PARTY OBLIGATIONS" means, without duplication, (i) all of the
obligations of the Credit Parties to the Lenders and the Administrative Agent,
whenever arising, under this Credit Agreement, the Notes or any of the other
Credit Documents (including, but not limited to, any interest accruing after the
occurrence of a filing of a petition of bankruptcy under the Bankruptcy Code
with respect to any Credit Party, regardless of whether such interest is an
allowed claim under the Bankruptcy Code) and (ii) all liabilities and
obligations, whenever arising, owing from any Credit Party or any of its
Subsidiaries to any Lender, or any Affiliate of a Lender, arising under any
Hedging Agreement.
"DEFAULT" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"DEFAULTING LENDER" means, at any time, any Lender that, at such time,
(i) has failed to make a Loan required pursuant to the terms of this Credit
Agreement, (ii) has failed to pay to the Administrative Agent or any Lender an
amount owed by such Lender pursuant to the terms of the Credit Agreement or any
other of the Credit Documents, or (iii) has been deemed insolvent or has become
subject to a bankruptcy or insolvency proceeding or to a receiver, trustee or
similar proceeding.
"DOLLARS" and "$" means dollars in lawful currency of the United States
of America.
"DOMESTIC SUBSIDIARY" means any Subsidiary that is organized and
existing under the laws of the United States or any state or commonwealth
thereof or under the laws of the District of Columbia and that is not a
controlled foreign corporation under Section 957 of the Internal Revenue Code.
6
"ENVIRONMENTAL LAWS" means any and all applicable foreign, federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, legally enforceable requirements or other
Requirement of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the
environment, as now or may at any time be in effect during the term of this
Credit Agreement.
"EQUITY ISSUANCE" shall mean any issuance by the Borrower or any
Subsidiary of the Borrower to any Person which is not a Credit Party of (a)
shares of its Capital Stock, (b) any shares of its Capital Stock pursuant to the
exercise of options or warrants or (c) any shares of its Capital Stock pursuant
to the conversion of any debt securities to equity.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"EURODOLLAR RESERVE PERCENTAGE" means for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of Eurocurrency liabilities, as defined in Regulation D of such Board as
in effect from time to time, or any similar category of liabilities for a member
bank of the Federal Reserve System in New York City.
"EVENT OF DEFAULT" means such term as defined in Section 8.1.
"EXISTING LETTERS OF CREDIT" means the letters of credit outstanding on
the Closing Date and identified on SCHEDULE 1.1-C hereto.
"EXTENSION OF CREDIT" shall mean, as to any Lender, the making of a
Loan by such Lender or the issuance of, or participation in, a Letter of Credit
by such Lender.
"FEE LETTER" means that certain letter agreement, dated as of April 22,
2002, among Wachovia, the Lead Arranger and the Borrower, as amended, modified,
supplemented or replaced from time to time.
"FEES" means all fees payable pursuant to Section 3.5.
"FEDERAL FUNDS RATE" means, for any day, the rate of interest per annum
(rounded upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System of the United States
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day, PROVIDED
that (A) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day and
(B) if no such
7
rate is so published on such next preceding Business Day, the Federal Funds Rate
for such day shall be the average rate quoted to the Administrative Agent on
such day on such transactions as reasonably determined by the Administrative
Agent.
"FUNDED DEBT" means, with respect to any Person, without duplication,
(a) all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments, or
upon which interest payments are customarily made, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the ordinary
course of business), (d) all obligations of such Person incurred, issued or
assumed as the deferred purchase price of property or services purchased by such
Person (other than trade debt incurred in the ordinary course of business and
due within six months of the incurrence thereof) which would appear as
liabilities on a balance sheet of such Person, (e) the principal portion of all
obligations of such Person under Capital Leases, (f) all obligations of such
Person under Hedging Agreements, excluding any portion thereof which would be
accounted for as interest expense under GAAP, (g) the maximum amount of all
letters of credit issued or bankers' acceptances facilities created for the
account of such Person and, without duplication, all drafts drawn thereunder (to
the extent unreimbursed), (h) all preferred Capital Stock issued by such Person
and which by the terms thereof could be (at the request of the holders thereof
or otherwise) subject to mandatory sinking fund payments prior to the date six
months after the Maturity Date, redemption prior to the date six months after
the Maturity Date or other acceleration, (i) the principal balance outstanding
under any synthetic lease, tax retention operating lease, off-balance sheet loan
or similar off-balance sheet financing product, (j) all Indebtedness of others
of the type described in clauses (a) through (i) hereof secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on, or payable out of the proceeds of production
from, property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, provided that so long as such Indebtedness is
non-recourse to such Person, only the portion of such obligations which is
secured shall constitute Indebtedness hereunder, (k) all Guaranty Obligations of
such Person with respect to Indebtedness of another Person of the type described
in clauses (a) through (i) hereof, and (l) all Indebtedness of the type
described in clauses (a) through (i) hereof of any partnership or unincorporated
joint venture in which such Person is a general partner or a joint venturer;
PROVIDED, HOWEVER, that Funded Debt shall not include Indebtedness among the
Credit Parties to the extent such Indebtedness would be eliminated on a
consolidated basis.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to the terms of Section 1.3
hereof.
"GOVERNMENT ACTS" has the meaning set forth in Section 3.14.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GUARANTORS" means (a) any of the Material Domestic Subsidiaries
identified as a "Guarantor" on the signature pages hereto and (b) any Person
which executes a Joinder
8
Agreement in accordance with the terms of this Credit Agreement, together with
their successors and permitted assigns.
"GUARANTY" means the guaranty of the Guarantors set forth in Section
10.
"GUARANTY OBLIGATIONS" means, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (i) to purchase any such Indebtedness or
any property constituting security therefor, (ii) to advance or provide funds or
other support for the payment or purchase of any such Indebtedness or to
maintain working capital, solvency or other balance sheet condition of such
other Person (including without limitation keep well agreements, maintenance
agreements, comfort letters or similar agreements or arrangements) for the
benefit of any holder of Indebtedness of such other Person, (iii) to lease or
purchase Property, securities or services primarily for the purpose of assuring
the holder of such Indebtedness, or (iv) to otherwise assure or hold harmless
the holder of such Indebtedness against loss in respect thereof. The amount of
any Guaranty Obligation hereunder shall (subject to any limitations set forth
therein) be deemed to be an amount equal to the outstanding principal amount (or
maximum principal amount, if larger) of the Indebtedness in respect of which
such Guaranty Obligation is made.
"HEDGING AGREEMENTS" means, with respect to any Person, any agreement
entered into to protect such Person against fluctuations in interest rates, or
currency or raw materials values, including, without limitation, any interest
rate swap, cap or collar agreement or similar arrangement between such Person
and one or more counterparties, any foreign currency exchange agreement,
currency protection agreements, commodity purchase or option agreements or other
interest or exchange rate or commodity price hedging agreements.
"INDEBTEDNESS" means, with respect to any Person, without duplication,
(a) all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments, or
upon which interest payments are customarily made, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the ordinary
course of business), (d) all obligations of such Person issued or assumed as the
deferred purchase price of property or services purchased by such Person (other
than trade debt incurred in the ordinary course of business and due within six
months of the incurrence thereof) which would appear as liabilities on a balance
sheet of such Person, (e) all obligations of such Person under take-or-pay or
similar arrangements or under commodities agreements, (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on, or payable out of
the proceeds of production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, provided that
so long as such Indebtedness is non-recourse to such Person, only the portion of
such obligations which is secured shall constitute Indebtedness hereunder, (g)
all Guaranty Obligations of such Person with respect to Indebtedness of another
Person, (h) the principal portion of all obligations of such Person under
Capital Leases plus any accrued interest thereon, (i) all obligations of such
Person under Hedging Agreements, (j) the
9
maximum amount of all letters of credit issued or bankers' acceptances
facilities created for the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent unreimbursed), (k) all preferred Capital
Stock issued by such Person and which by the terms thereof could be (at the
request of the holders thereof or otherwise) subject to mandatory sinking fund
payments prior to the date six months after the Maturity Date, redemption prior
to the date six months after the Maturity Date or other acceleration, (l) the
principal balance outstanding under any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
plus any accrued interest thereon, and (m) the Indebtedness of any partnership
or unincorporated joint venture in which such Person is a general partner or a
joint venturer.
"INSOLVENCY" means, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such term as used in
Section 4245 of ERISA.
"INTEREST COVERAGE RATIO" means, for the applicable period, the ratio
of (i) (A) Consolidated EBITDA for such period MINUS (B) Consolidated Capital
Expenditures for such period to (ii) Consolidated Interest Expense paid or
payable in cash during such period. Unless expressly indicated otherwise, the
applicable period shall be for the four consecutive quarters ending on the date
of computation.
"INTEREST PAYMENT DATE" means (a) as to any Alternate Base Rate Loan,
the last day of each March, June, September and December and on the Maturity
Date, (b) as to any LIBOR Rate Loan having an Interest Period of three months or
less, the last day of such Interest Period, and (c) as to any LIBOR Rate Loan
having an Interest Period longer than three months, each day which is three
months after the first day of such Interest Period and the last day of such
Interest Period.
"INTEREST PERIOD" means, as to any LIBOR Rate Loan, a period of one,
two, three or six month's duration, as the Borrower may elect, commencing in
each case, on the date of the borrowing (including conversions, extensions and
renewals); PROVIDED, HOWEVER, (A) if any Interest Period would end on a day
which is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day (except that in the case of LIBOR Rate Loans where the
next succeeding Business Day falls in the next succeeding calendar month, then
on the next preceding Business Day), (B) no Interest Period shall extend beyond
the Maturity Date, and (C) in the case of LIBOR Rate Loans, where an Interest
Period begins on a day for which there is no numerically corresponding day in
the calendar month in which the Interest Period is to end, such Interest Period
shall end on the last day of such calendar month.
"INVESTMENT" means all investments, in cash or by delivery of property
made, directly or indirectly in, to or from any Person, whether by acquisition
of shares of Capital Stock, property, assets, indebtedness or other obligations
or securities or by loan advance, capital contribution or otherwise.
"ISSUING LENDER" means Wachovia.
"ISSUING LENDER FEES" has the meaning set forth in Section 3.5(c).
10
"JOINDER AGREEMENT" means a Joinder Agreement in substantially the form
of SCHEDULE 6.9, executed and delivered by each Person required to become a
Guarantor in accordance with the provisions of Section 6.9.
"LEAD ARRANGER" means First Union Securities, Inc., acting under the
tradename Wachovia Securities, together with its successors and assigns.
"LENDERS" means each of the Persons identified as a "Lender" on the
signature pages hereto, and their successors and assigns.
"LETTERS OF CREDIT" shall mean the Existing Letters of Credit and the
letters of credit issued by the Issuing Lender pursuant to the terms hereof, as
such Letters of Credit may be amended, restated, modified, extended, renewed or
replaced from time to time.
"LETTER OF CREDIT FEE" shall have the meaning set forth in Section
3.5(b).
"LEVERAGE RATIO" means the ratio of (i) Consolidated Funded Debt on the
date of computation to (ii) Consolidated EBITDA for the applicable period ending
on the date of computation. Unless expressly indicated otherwise, the applicable
period shall be for the four consecutive quarters ending on the date of
computation.
"LIBOR" means, for any LIBOR Rate Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason such
rate is not available, the term "LIBOR" shall mean, for any LIBOR Rate Loan for
any Interest Period therefor, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided, however, if more than
one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates (rounded upwards, if necessary, to the
nearest 1/100 of 1%). If, for any reason, neither of such rates is available,
then "LIBOR" shall mean the rate per annum at which, as determined by the
Administrative Agent, Dollars in an amount comparable to the Loans then
requested are being offered to leading banks at approximately 11:00 A.M. London
time, two (2) Business Days prior to the commencement of the applicable Interest
Period for settlement in immediately available funds by leading banks in the
London interbank market for a period equal to the Interest Period selected.
"LIBOR LENDING OFFICE" means, initially, the office of each Lender
designated as such Lender's LIBOR Lending Office shown on SCHEDULE 11.2; and
thereafter, such other office of such Lender as such Lender may from time to
time specify to the Administrative Agent and the Borrower as the office of such
Lender at which the LIBOR Rate Loans of such Lender are to be made.
11
"LIBOR RATE" means a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined by the Administrative Agent pursuant
to the following formula:
LIBOR Rate = LIBOR
-----------------------------------
1.00 - Eurodollar Reserve Percentage
"LIBOR RATE LOAN" means any Loan bearing interest at a rate determined
by reference to the LIBOR Rate.
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind (including any conditional sale or
other title retention agreement, any financing or similar statement or notice
filed under the Uniform Commercial Code as adopted and in effect in the relevant
jurisdiction or other similar recording or notice statute, and any lease in the
nature thereof).
"LOAN" or "LOANS" means any Revolving Loan.
"LOC COMMITMENT" shall mean the commitment of the Issuing Lender to
issue Letters of Credit and with respect to each Lender, the commitment of such
Lender to purchase participation interests in the Letters of Credit up to such
Lender's LOC Committed Amount as specified in SCHEDULE 2.1(a), as such amount
may be reduced from time to time in accordance with the provisions hereof.
"LOC COMMITMENT PERCENTAGE" shall mean, for each Lender, the percentage
identified as its LOC Commitment Percentage on SCHEDULE 2.1(a), as such
percentage may be modified in connection with any assignment made in accordance
with the provisions of Section 11.6(c).
"LOC COMMITTED AMOUNT" shall mean, collectively, the aggregate amount
of all of the LOC Commitments of the Lenders to issue and participate in Letters
of Credit as referenced in Section 2.2 and, individually, the amount of each
Lender's LOC Commitment as specified in SCHEDULE 2.1(a).
"LOC DOCUMENTS" shall mean, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments, guarantees
or other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (i) the rights and obligations of
the parties concerned or (ii) any collateral security for such obligations.
"LOC OBLIGATIONS" shall mean, at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to be drawn
under Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit PLUS (ii) the
aggregate amount of all drawings under Letters of Credit honored by the Issuing
Lender but not theretofore reimbursed.
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"MANDATORY BORROWING" has the meaning set forth in Section 2.2(e).
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, condition (financial or otherwise) or liabilities (financial
or otherwise) of the Credit Parties and their Subsidiaries taken as a whole, (b)
the ability of the Credit Parties, taken as a whole, to perform their
obligations, when such obligations are required to be performed, under this
Credit Agreement, any of the Notes or any other Credit Document or (c) the
validity or enforceability of this Credit Agreement, any of the Notes or any of
the other Credit Documents or the material rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"MATERIAL CONTRACT" means any contract or other arrangement, whether
written or oral, to which the Borrower or any of its Subsidiaries is a party as
to which contract the breach, nonperformance or cancellation of such contract by
any party thereto could reasonably be expected to have a Material Adverse
Effect.
"MATERIAL DOMESTIC SUBSIDIARY" means any Domestic Subsidiary of the
Borrower that, together with its Subsidiaries, owns in excess of 5% of
Consolidated Total Tangible Assets.
"MATERIALS OF ENVIRONMENTAL CONCERN" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials, or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"MATURITY DATE" means the third anniversary of the Closing Date.
"MOODY'S" means Moody's Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating securities.
"MULTIEMPLOYER PLAN" means a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA, to which the Borrower or any Commonly
Controlled Entity is making or accruing an obligation to make contributions or
has within any of the preceding five Plan years made or accrued an obligation to
make contributions.
"MULTIPLE EMPLOYER PLAN" means a Single Employer Plan, as defined in
Section 4001(a)(15) of ERISA, to which the Borrower or any ERISA Affiliate and
at least one employer other than the Borrower, any Subsidiary of the Borrower or
any ERISA Affiliate are contributing sponsors.
"NOTE" or "NOTES" means the promissory notes of the Borrower in favor
of each of the Lenders evidencing the Revolving Loans in substantially the form
attached as SCHEDULE 2.1(e), individually or collectively, as appropriate, as
such promissory notes may be amended, modified, supplemented, extended, renewed
or replaced from time to time.
"NOTICE OF BORROWING" means a written notice of borrowing in
substantially the form of SCHEDULE 2.1(b)(i), as required by Section 2.1(b)(i).
13
"NOTICE OF EXTENSION/CONVERSION" means the written notice of extension
or conversion in substantially the form of SCHEDULE 3.2, as required by Section
3.2.
"PARTICIPATION INTEREST" means the purchase by a Lender of a
participation interest in Letters of Credit as provided in Section 2.2.
"PARTICIPANT" shall have the meaning set forth in Section 11.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"PERMITTED ACQUISITION" means any acquisition or any series of related
acquisitions by a Credit Party of the assets or a majority of the Voting Stock
of a Person that is incorporated, formed or organized in the United States, or
any division, line of business or other business unit of a Person that is
incorporated, formed or organized in the United States (such Person or such
division, line of business or other business unit of such Person referred to
herein as the "TARGET"), in each case that is a type of business (or assets used
in a type of business) permitted to be engaged in by the Credit Parties and
their Subsidiaries pursuant to Section 7.3 hereof, so long as (a) no Default or
Event of Default shall then exist or would exist after giving effect thereto,
(b) the Credit Parties shall demonstrate to the reasonable satisfaction of the
Administrative Agent and the Required Lenders that (i) the Credit Parties will
be in compliance on a Pro Forma Basis with all of the terms and provisions of
the financial covenants set forth in Section 6.7 as of the end of the most
recently ended fiscal quarter and (ii) the Leverage Ratio shall be less than or
equal to 1.75 to 1.0 after giving effect to such acquisition, (c) the Target, if
a Person, shall have executed a Joinder Agreement in accordance with the terms
of Section 6.9, if applicable, (d) the Target has earnings before interest,
taxes, depreciation and amortization for the most recent four fiscal quarters
prior to the acquisition date for which financial statements are available in an
amount greater than $0, (e) such acquisition is not a "hostile" acquisition and
has been approved by the Board of Directors and/or shareholders of the
applicable Credit Party and the Target and (f) total consideration (including,
without limitation, assumed Indebtedness, earnout payments and any other
deferred payment) for the net assets, Capital Stock, division, line of business
or other business unit acquired in such acquisition or series of related
acquisitions shall not exceed $100,000,000 for any individual acquisition (or
series of related acquisitions) or $125,000,000 in the aggregate for all
acquisitions during any fiscal year.
"PERMITTED INVESTMENTS" means:
(i) cash and Cash Equivalents;
(ii) receivables owing to the Borrower or any of its
Subsidiaries or any receivables and advances to suppliers, in each case
if created, acquired or made in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
(iii) Investments in and loans by any Credit Party to any
other Credit Party;
14
(iv) loans and advances to officers, directors and employees
in the ordinary course of business in an aggregate amount not to exceed
$1,000,000 at any time outstanding;
(v) Investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course
of business;
(vi) Investments, acquisitions or transactions permitted under
Section 7.4(b)(ii)(B);
(vii) Permitted Acquisitions;
(viii) Investments in Hedging Agreements to the extent
permitted by Section 7.1(e); and
(ix) additional loan advances and/or Investments of a nature
not contemplated by the foregoing clauses hereof; PROVIDED that such
loans, advances and/or Investments made pursuant to this clause (ix)
shall not exceed an aggregate amount of $10,000,000.
"PERMITTED LIENS" means:
(i) Liens in favor of a Lender hereunder in connection with
Hedging Agreements permitted under Section 7.1(e), but only to the
extent such Liens secure obligations under Hedging Agreements with any
Lender or any Affiliate of a Lender;
(ii) Liens securing purchase money Indebtedness and Capital
Lease Obligations to the extent permitted under Section 7.1(c);
provided, that (A) any such Lien attaches to such property concurrently
with or within 30 days after the acquisition thereof and (B) such Lien
attaches solely to the property so acquired in such transaction;
(iii) Liens for taxes, assessments, charges or other
governmental levies not yet due or as to which the period of grace, if
any, related thereto has not expired or which are being contested in
good faith by appropriate proceedings, PROVIDED that adequate reserves
with respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(iv) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(v) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing
15
liability to insurance carriers under insurance or self-insurance
arrangements incurred in the ordinary course of business;
(vi) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(vii) Liens existing on the Closing Date and set forth on
SCHEDULE 1.1-B; provided that no such Lien shall at any time be
extended to cover property or assets other than the property or assets
subject thereto on the Closing Date;
(viii) easements, rights-of-way, restrictions (including
zoning restrictions), minor defects or irregularities in title and
other similar charges or encumbrances not, in any material respect,
impairing the use of the encumbered Property for its intended purposes;
(ix) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any Lien
referred to in the foregoing clauses; PROVIDED that such extension,
renewal or replacement Lien shall be limited to all or a part of the
property which secured the Lien so extended, renewed or replaced; and
(x) other Liens not described above, provided that such Liens
do not secure obligations in excess of $15,000,000 in the aggregate at
any time outstanding.
"PERSON" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated) or any Governmental Authority.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PRIME RATE" means the rate of interest per annum publicly announced
from time to time by Wachovia as its prime rate in effect at its principal
office in Charlotte, North Carolina, with each change in the Prime Rate being
effective on the date such change is publicly announced as effective (it being
understood and agreed that the Prime Rate is a reference rate used by Wachovia
in determining interest rates on certain loans and is not intended to be the
lowest rate of interest charged on any extension of credit by Wachovia to any
debtor).
"PRO FORMA BASIS" shall mean, with respect to any transaction, that
such transaction shall be deemed to have occurred as of the first day of the
twelve-month period ending as of the most recent quarter end preceding the date
of such transaction.
"PROPERTY" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"PURCHASING LENDERS" shall have the meaning set forth in Section
11.6(c).
16
"RECOVERY EVENT" shall mean the receipt by the Borrower or any of its
Subsidiaries of any cash insurance proceeds or condemnation award payable by
reason of theft, loss, physical destruction or damage, taking or similar event
with respect to any of their respective property or assets.
"REGISTER" shall have the meaning given such term in Section 11.6(d).
"REGULATION T, U, OR X" means Regulation T, U or X, respectively, of
the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof.
"REORGANIZATION" means, with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of such term as
used in Section 4241 of ERISA.
"RELATED FUND" means, with respect to any Lender, any fund or trust or
entity that invests in commercial bank loans in the ordinary course of business
and is advised or managed by (i) such Lender, (ii) an Affiliate of such Lender,
(iii) any other Lender or any Affiliate thereof or (iv) the same investment
advisor as any Person described in clauses (i) - (iii).
"REPORTABLE EVENT" means the occurrence of any of the events set forth
in Section 4043(c) of ERISA, other than those events as to which the thirty-day
notice period is waived under PBGC Reg. ss.4043.
"REQUIRED LENDERS" means, at any time, Lenders having more than 50% of
the Commitments, or if the Commitments have been terminated, Lenders having more
than 50% of the aggregate principal amount of Loans outstanding; PROVIDED that
the Commitments of, and outstanding principal amount of Loans owing to, a
Defaulting Lender shall be excluded for purposes hereof in making a
determination of Required Lenders.
"REQUIREMENT OF LAW" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its material property is subject.
"RESPONSIBLE OFFICER" means the Chief Executive Officer, the Chief
Financial Officer of the Borrower or the Chief Operating Officer.
"RESTRICTED PAYMENT" shall mean (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of Capital Stock of
the Borrower or any of its Subsidiaries, now or hereafter outstanding, (b) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of Capital
Stock of the Borrower or any of its Subsidiaries, now or hereafter outstanding,
(c) any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of Capital
Stock of the Borrower or any of its Subsidiaries, now or hereafter outstanding,
(d) any payment with respect to any earnout obligation or (e) any payment
17
or prepayment of principal of, premium, if any, or interest on, redemption,
purchase, retirement, defeasance, sinking fund or similar payment with respect
to, any Subordinated Indebtedness.
"REVOLVING COMMITTED AMOUNT" means the amount of each Lender's
Commitment as specified in SCHEDULE 2.1(A), as such amount may be reduced from
time to time in accordance with the provisions hereof.
"REVOLVING LOANS" shall have the meaning assigned to such term in
Section 2.1(a).
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc., or any successor or assignee of the business of such division in the
business of rating securities.
"SIGNIFICANT SUBSIDIARY" means, as of the date of any determination
thereof, any Subsidiary of the Borrower that either: (a) owns assets having a
book value equal to or greater than 10.0% of Consolidated Total Tangible Assets
or (b) had net income for any prior period of four consecutive fiscal quarters
equal to or greater than 10.0% of Consolidated Net Income for the same four
fiscal quarter period.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, to which the Borrower or any Commonly Controlled
Entity, and no Person other than the Borrower and the Commonly Controlled
Entity, has an obligation to contribute or in respect of which the Borrower or
any Commonly Controlled Entity could have liability under Section 4069 of ERISA
in the event such plan were to be terminated.
"SUBORDINATED INDEBTEDNESS" shall mean any Indebtedness incurred by any
Credit Party that by its terms is specifically subordinated in right of payment
to the prior payment of the Credit Party Obligations.
"SUBSIDIARY" means, as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power to elect a majority of the
directors or other managers of such corporation, partnership, limited liability
company or other entity (irrespective of whether or not at the time, any class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) are at the time owned by such Person
directly or indirectly through Subsidiaries. Unless otherwise identified,
"Subsidiary" or "Subsidiaries" shall mean Subsidiaries of the Borrower.
"TARGET" shall have the meaning set forth in the definition of
Permitted Acquisition.
"TAXES" shall have the meaning set forth in Section 3.13.
"TRANSFER EFFECTIVE DATE" shall have the meaning set forth in each
Commitment Transfer Supplement.
"VOTING STOCK" means, with respect to any Person, Capital Stock issued
by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the
18
election of directors (or persons performing similar functions) of such Person,
even though the right so to vote has been suspended by the happening of such a
contingency.
"WACHOVIA" means Wachovia Bank, National Association and its
successors.
1.2 COMPUTATION OF TIME PERIODS.
All time references in this Credit Agreement and the other Credit
Documents shall be to Charlotte, North Carolina time unless otherwise indicated.
For purposes of computation of periods of time hereunder, the word "from" means
"from and including" and the words "to" and "until" each mean "to but
excluding."
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis; provided, however, that with respect to the determination of the
financial covenants set forth in Section 6.7 and for determinations of such
covenants on a Pro Forma Basis in connection with Permitted Acquisitions, such
calculations shall be made excluding the effects of Financial Accounting
Standards Board Statement of Financial Accounting Standards No. 141 and No. 142
otherwise applicable thereto. All calculations made for the purposes of
determining compliance with this Credit Agreement (including, without
limitation, calculation of the financial covenants set forth in Section 6.7)
shall (except as otherwise expressly provided herein) be made by application of
GAAP applied on a basis consistent with the most recent annual or quarterly
financial statements delivered pursuant to Section 6.1 hereof (or, prior to the
delivery of the first financial statements pursuant to Section 6.1 hereof,
consistent with the annual audited financial statements referenced in Section
5.1(a) hereof); PROVIDED, HOWEVER, if (a) the Borrower shall object to
determining such compliance on such basis at the time of delivery of such
financial statements due to any change in GAAP or the rules promulgated with
respect thereto or (b) the Administrative Agent or the Required Lenders shall so
object in writing within 30 days after delivery of such financial statements,
then such calculations shall be made on a basis consistent with the most recent
financial statements delivered by the Borrower to the Lenders as to which no
such objection shall have been made.
SECTION 2
CREDIT FACILITY
2.1 REVOLVING LOANS.
(a) COMMITMENT. During the Commitment Period, subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
in Dollars (the "REVOLVING LOANS") to the Borrower from time to time in the
amount of such Lender's Commitment Percentage of such Revolving Loans for the
purposes hereinafter set forth;
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PROVIDED that (i) with regard to the Lenders collectively, the aggregate
principal amount of Loans outstanding at any time PLUS LOC Obligations shall not
exceed the Aggregate Revolving Committed Amount, and (ii) with regard to each
Lender individually, the aggregate principal amount of such Lender's Commitment
Percentage of Revolving Loans outstanding at any time PLUS such Lender's LOC
Commitment Percentage of LOC Obligations shall not exceed such Lender's
Revolving Committed Amount. Revolving Loans may consist of Alternate Base Rate
Loans or LIBOR Rate Loans, or a combination thereof, as the Borrower may
request, and may be repaid and reborrowed in accordance with the provisions
hereof.
(b) REVOLVING LOAN BORROWINGS.
(i) NOTICE OF BORROWING. The Borrower shall request a
Revolving Loan borrowing by written notice (or telephone notice
promptly confirmed in writing) to the Administrative Agent not later
than 11:00 A.M. on the Business Day prior to the date of the requested
borrowing in the case of Alternate Base Rate Loans, and on the third
Business Day prior to the date of the requested borrowing in the case
of LIBOR Rate Loans. Each such request for borrowing shall be
irrevocable and shall specify (A) that a Revolving Loan is requested,
(B) the date of the requested borrowing (which shall be a Business
Day), (C) the aggregate principal amount to be borrowed, and (D)
whether the borrowing shall be comprised of Alternate Base Rate Loans,
LIBOR Rate Loans or a combination thereof, and if LIBOR Rate Loans are
requested, the Interest Period(s) therefor. If the Borrower shall fail
to specify in any such Notice of Borrowing (I) an applicable Interest
Period in the case of a LIBOR Rate Loan, then such notice shall be
deemed to be a request for an Interest Period of one month, or (II) the
type of Revolving Loan requested, then such notice shall be deemed to
be a request for a Alternate Base Rate Loan hereunder. The
Administrative Agent shall give notice to each Lender promptly upon
receipt of each Notice of Borrowing pursuant to this Section 2.1(b)(i),
the contents thereof and each such Lender's share of any borrowing to
be made pursuant thereto.
(ii) MINIMUM AMOUNTS. Each Revolving Loan shall be in a
minimum aggregate principal amount of (A) in the case of LIBOR Rate
Loans, $5,000,000 and integral multiples of $1,000,000 in excess
thereof (or the remaining Aggregate Revolving Committed Amount, if
less) and (B) in the case of Alternate Base Rate Loans, $1,000,000 and
integral multiples of $1,000,000 in excess thereof (or the remaining
Aggregate Revolving Committed Amount, if less).
(iii) ADVANCES. Each Lender will make its Commitment
Percentage of each Revolving Loan borrowing available to the
Administrative Agent for the account of the Borrower at the office of
the Administrative Agent specified in Section 11.2, or at such office
as the Administrative Agent may designate in writing, by 1:00 p.m. on
the date specified in the applicable Notice of Borrowing in Dollars and
in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the
Administrative Agent by crediting the account designated by the
Borrower with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by
the Administrative Agent.
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(c) REPAYMENT. The principal amount of all Loans shall be due and
payable in full on the Maturity Date.
(d) INTEREST. Subject to the provisions of Section 3.1:
(i) ALTERNATE BASE RATE LOANS. During such periods as
Revolving Loans shall be comprised in whole or in part of Alternate
Base Rate Loans, such Alternate Base Rate Loans shall bear interest at
a per annum rate equal to the Alternate Base Rate PLUS the Applicable
Percentage.
(ii) LIBOR RATE LOANS. During such periods as Revolving Loans
shall be comprised in whole or in part of LIBOR Rate Loans, such LIBOR
Rate Loans shall bear interest at a per annum rate equal to the LIBOR
Rate PLUS the Applicable Percentage.
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).
(e) NOTES. The Revolving Loans shall be evidenced by a duly executed
Note in favor of each Lender in the form of SCHEDULE 2.1(e) attached hereto.
(f) MAXIMUM NUMBER OF LIBOR RATE LOANS. The Borrower will be limited to
a maximum number of seven (7) LIBOR Rate Loans outstanding at any time. For
purposes hereof, LIBOR Rate Loans with separate or different Interest Periods
will be considered as separate LIBOR Rate Loans even if their Interest Periods
expire on the same date.
2.2 LETTER OF CREDIT SUBFACILITY.
(a) ISSUANCE. Subject to the terms and conditions hereof and of the LOC
Documents, if any, and any other terms and conditions which the Issuing Lender
may reasonably require, during the Commitment Period the Issuing Lender shall
issue, and the Lenders shall participate in, Letters of Credit for the account
of the Borrower from time to time upon request in a form acceptable to the
Issuing Lender; PROVIDED, HOWEVER, that (i) the aggregate amount of LOC
Obligations shall not at any time exceed FORTY MILLION DOLLARS ($40,000,000)
(the "LOC COMMITTED AMOUNT"), (ii) the sum of outstanding Revolving Loans PLUS
LOC Obligations shall not at any time exceed the Aggregate Revolving Committed
Amount, (iii) all Letters of Credit shall be denominated in U.S. Dollars and
(iv) Letters of Credit shall be issued for lawful corporate purposes and may be
issued as standby letters of credit, including in connection with workers'
compensation and other insurance programs, and trade letters of credit. Except
as otherwise expressly agreed upon by all the Lenders, no Letter of Credit shall
have an original expiry date more than twelve (12) months from the date of
issuance; PROVIDED, HOWEVER, so long as no Default or Event of Default has
occurred and is continuing and subject to the other terms and conditions to the
issuance of Letters of Credit hereunder, the expiry dates of Letters of Credit
may be extended annually or periodically from time to time on the request of the
Borrower or by operation of the terms of the applicable Letter of Credit to a
date not more than twelve (12) months from the date of extension; PROVIDED,
FURTHER, that no Letter of Credit, as originally issued
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or as extended, shall have an expiry date extending beyond the date which is six
(6) Business Days prior to the Maturity Date. Each Letter of Credit shall comply
with the related LOC Documents. The issuance and expiry date of each Letter of
Credit shall be a Business Day. Any Letters of Credit issued hereunder shall be
in a minimum original face amount of $100,000 or such lesser amount as the
Issuing Lender may agree. Wachovia shall be the Issuing Lender on all Letters of
Credit issued on or after the Closing Date. All Existing Letters of Credit
shall, as of the Closing Date, be deemed to have been issued pursuant hereto as
"Letters of Credit" hereunder and subject to and governed by the terms and
conditions of this Credit Agreement.
(b) NOTICE AND REPORTS. The request for the issuance of a Letter of
Credit shall be submitted to the Issuing Lender at least five (5) Business Days
prior to the requested date of issuance. The Issuing Lender will promptly upon
request provide to the Administrative Agent for dissemination to the Lenders a
detailed report specifying the Letters of Credit which are then issued and
outstanding and any activity with respect thereto which may have occurred since
the date of any prior report, and including therein, among other things, the
account party, the beneficiary, the face amount, expiry date as well as any
payments or expirations which may have occurred. The Issuing Lender will further
provide to the Administrative Agent promptly upon request copies of the Letters
of Credit. The Issuing Lender will provide to the Administrative Agent promptly
upon request a summary report of the nature and extent of LOC Obligations then
outstanding.
(c) PARTICIPATIONS. Each Lender upon issuance of a Letter of Credit
shall be deemed to have purchased without recourse a risk participation from the
Issuing Lender in such Letter of Credit (including each Existing Letter of
Credit) and the obligations arising thereunder and any collateral relating
thereto, in each case in an amount equal to its LOC Commitment Percentage of the
obligations under such Letter of Credit (including each Existing Letter of
Credit) and shall absolutely, unconditionally and irrevocably assume, as primary
obligor and not as surety, and be obligated to pay to the Issuing Lender
therefor and discharge when due, its LOC Commitment Percentage of the
obligations arising under such Letter of Credit. Without limiting the scope and
nature of each Lender's participation in any Letter of Credit, to the extent
that the Issuing Lender has not been reimbursed as required hereunder or under
any LOC Document, each such Lender shall pay to the Issuing Lender its LOC
Commitment Percentage of such unreimbursed drawing in same day funds on the day
of notification by the Issuing Lender of an unreimbursed drawing pursuant to the
provisions of subsection (d) hereof. The obligation of each Lender to so
reimburse the Issuing Lender shall be absolute and unconditional and shall not
be affected by the occurrence of a Default, an Event of Default or any other
occurrence or event. Any such reimbursement shall not relieve or otherwise
impair the obligation of the Borrower to reimburse the Issuing Lender under any
Letter of Credit, together with interest as hereinafter provided.
(d) REIMBURSEMENT. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrower and the
Administrative Agent. The Borrower shall reimburse the Issuing Lender on the day
of drawing under any Letter of Credit (with the proceeds of a Revolving Loan
obtained hereunder or otherwise) if it receives such notice from the Issuing
Lender at or before 2:00 P.M. (Charlotte, North Carolina time) in same day funds
as provided herein or in the LOC Documents. If the Borrower shall fail to
reimburse the Issuing Lender as provided herein, the unreimbursed amount of such
drawing shall bear interest at a per
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annum rate equal to the Alternate Base Rate plus the Applicable Percentage plus
two percent (2%). Unless the Borrower shall immediately notify the Issuing
Lender and the Administrative Agent of its intent to otherwise reimburse the
Issuing Lender, the Borrower shall be deemed to have requested a Revolving Loan
in the amount of the drawing as provided in subsection (e) hereof, the proceeds
of which will be used to satisfy the reimbursement obligations. The Borrower's
reimbursement obligations hereunder shall be absolute and unconditional under
all circumstances irrespective of any rights of set-off, counterclaim or defense
to payment the Borrower may claim or have against the Issuing Lender, the
Administrative Agent, the Lenders, the beneficiary of the Letter of Credit drawn
upon or any other Person, including without limitation any defense based on any
failure of the Borrower to receive consideration or the legality, validity,
regularity or unenforceability of the Letter of Credit. The Issuing Lender will
promptly notify the Lenders of the amount of any unreimbursed drawing and each
Lender shall promptly pay to the Administrative Agent for the account of the
Issuing Lender in Dollars and in immediately available funds, the amount of such
Lender's LOC Commitment Percentage of such unreimbursed drawing. Such payment
shall be made on the day such notice is received by such Lender from the Issuing
Lender if such notice is received at or before 2:00 P.M. (Charlotte, North
Carolina time), otherwise such payment shall be made at or before 12:00 Noon
(Charlotte, North Carolina time) on the Business Day next succeeding the day
such notice is received. If such Lender does not pay such amount to the Issuing
Lender in full upon such request, such Lender shall, on demand, pay to the
Administrative Agent for the account of the Issuing Lender interest on the
unpaid amount during the period from the date of such drawing until such Lender
pays such amount to the Issuing Lender in full at a rate per annum equal to, if
paid within two (2) Business Days of the date of drawing, the Federal Funds Rate
and thereafter at a rate equal to the Alternate Base Rate. Each Lender's
obligation to make such payment to the Issuing Lender, and the right of the
Issuing Lender to receive the same, shall be absolute and unconditional, shall
not be affected by any circumstance whatsoever and without regard to the
termination of this Credit Agreement or the Commitments hereunder, the existence
of a Default or Event of Default or the acceleration of the Credit Party
Obligations hereunder and shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e) REPAYMENT WITH REVOLVING LOANS. On any day on which the Borrower
shall have requested, or been deemed to have requested, a Revolving Loan to
reimburse a drawing under a Letter of Credit, the Administrative Agent shall
give notice to the Lenders that a Revolving Loan has been requested or deemed
requested in connection with a drawing under a Letter of Credit, in which case a
Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans (each
such borrowing, a "MANDATORY BORROWING") shall be immediately made (without
giving effect to any termination of the Commitments pursuant to Section 8.2) PRO
RATA based on each Lender's respective Commitment Percentage (determined before
giving effect to any termination of the Commitments pursuant to Section 8.2) and
the proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. Each Lender hereby irrevocably
agrees to make such Revolving Loans immediately upon any such request or deemed
request on account of each Mandatory Borrowing in the amount and in the manner
specified in the preceding sentence and on the same such date NOTWITHSTANDING
(i) the amount of Mandatory Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise required hereunder, (ii) whether any
conditions specified in Section 4.2 are then satisfied, (iii) whether a Default
or an Event of Default then exists, (iv) failure for any such
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request or deemed request for Revolving Loan to be made by the time otherwise
required in Section 2.1(b), (v) the date of such Mandatory Borrowing, or (vi)
any reduction in the Aggregate Revolving Committed Amount after any such Letter
of Credit may have been drawn upon. In the event that any Mandatory Borrowing
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code), then each such Lender hereby agrees that it shall forthwith
fund (as of the date the Mandatory Borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or after such date and
prior to such purchase) its Participation Interests in the LOC Obligations;
PROVIDED, FURTHER, that in the event any Lender shall fail to fund its
Participation Interest on the day the Mandatory Borrowing would otherwise have
occurred, then the amount of such Lender's unfunded Participation Interest
therein shall bear interest payable by such Lender to the Issuing Lender upon
demand, at the rate equal to, if paid within two (2) Business Days of such date,
the Federal Funds Rate, and thereafter at a rate equal to the Alternate Base
Rate.
(f) MODIFICATION, EXTENSION. The issuance of any supplement,
modification, amendment, renewal, or extension to any Letter of Credit shall,
for purposes hereof, be treated in all respects the same as the issuance of a
new Letter of Credit hereunder.
(g) UNIFORM CUSTOMS AND PRACTICES. The Issuing Lender shall have the
Letters of Credit be subject to The Uniform Customs and Practice for Documentary
Credits, as published as of the date of issue by the International Chamber of
Commerce (the "UCP"), in which case the UCP may be incorporated therein and
deemed in all respects to be a part thereof.
(h) CONFLICT WITH LOC DOCUMENTS. In the event of any conflict between
this Credit Agreement and any LOC Document (including any letter of credit
application), this Credit Agreement shall control.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 DEFAULT RATE.
Upon the occurrence, and during the continuance, of an Event of
Default, the principal of and, to the extent permitted by law, interest on the
Loans and any other amounts owing hereunder or under the other Credit Documents
shall, upon the election of the Required Lenders (except with respect to an
Event of Default occurring under Section 8.1(e), in which case such interest
rate increase shall be immediate), bear interest, payable on demand, at a per
annum rate 2% greater than the interest rate which would otherwise be applicable
(or if no rate is applicable, whether in respect of interest, fees or other
amounts, then 2% greater than the Alternate Base Rate plus the Applicable
Percentage).
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3.2 EXTENSION AND CONVERSION.
The Borrower shall have the option, on any Business Day, to extend
existing Loans into a subsequent permissible Interest Period or to convert Loans
into Loans of another interest rate type; PROVIDED, HOWEVER, that (i) except as
expressly provided otherwise in this Credit Agrement, LIBOR Rate Loans may be
converted into Alternate Base Rate Loans only on the last day of the Interest
Period applicable thereto, (ii) LIBOR Rate Loans may be extended, and Alternate
Base Rate Loans may be converted into LIBOR Rate Loans, only if the conditions
in Section 4.2 have been satisfied and (iii) Loans extended as, or converted
into, LIBOR Rate Loans shall be subject to the terms of the definition of
"INTEREST PERIOD" set forth in Section 1.1 and shall be in such minimum amounts
as provided in Section 2.1(b)(ii). Any request for extension or conversion of a
LIBOR Rate Loan which shall fail to specify an Interest Period shall be deemed
to be a request for an Interest Period of one month. Each such extension or
conversion shall be effected by the Borrower by giving a Notice of
Extension/Conversion (or telephone notice promptly confirmed in writing) to the
Administrative Agent prior to 11:00 A.M. on the Business Day of, in the case of
the conversion of a LIBOR Rate Loan into a Alternate Base Rate Loan, and on the
third Business Day prior to, in the case of the extension of a LIBOR Rate Loan
as, or conversion of a Alternate Base Rate Loan into, a LIBOR Rate Loan, the
date of the proposed extension or conversion, specifying (A) the date of the
proposed extension or conversion, (B) the Loans to be so extended or converted,
(C) the types of Loans into which such Loans are to be converted and, if
appropriate, (D) the applicable Interest Periods with respect thereto. Each
request for extension or conversion shall be irrevocable and shall constitute a
representation and warranty by the Borrower of the matters specified in Section
4.2. In the event the Borrower fails to request extension or conversion of any
LIBOR Rate Loan in accordance with this Section, or any such conversion or
extension is not permitted or required by this Section, then such LIBOR Rate
Loan shall be converted to an Alternate Base Rate Loan at the end of the
Interest Period applicable thereto. The Administrative Agent shall give each
Lender notice as promptly as practicable of any such proposed extension or
conversion affecting any Loan.
3.3 VOLUNTARY REPAYMENTS AND MANDATORY PREPAYMENTS.
(a) VOLUNTARY REPAYMENTS. Revolving Loans may be repaid in whole or in
part without premium or penalty; PROVIDED that (i) LIBOR Rate Loans may be
repaid only upon three (3) Business Days' prior written notice to the
Administrative Agent, and Alternate Base Rate Loans may be repaid only upon at
least one (1) Business Day's prior written notice to the Administrative Agent,
(ii) repayments of LIBOR Rate Loans must be accompanied by payment of any
amounts owing under Section 3.12, and (iii) partial repayments shall be in
minimum principal amount of $5,000,000, and in integral multiples of $1,000,000
in excess thereof.
(b) MANDATORY PREPAYMENTS. If at any time, the aggregate principal
amount of Loans outstanding PLUS LOC Obligations shall exceed the Aggregate
Revolving Committed Amount, the Borrower shall immediately make payment on the
Loans in an amount sufficient to eliminate the deficiency.
(c) APPLICATION. Unless otherwise specified by the Borrower, voluntary
repayments and mandatory prepayments made hereunder shall be applied first to
Alternate Base Rate Loans,
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then to LIBOR Rate Loans in direct order of Interest Period maturities, and then
(after all Revolving Loans have been repaid) to a cash collateral account in
respect of LOC Obligations. Amounts repaid hereunder may be reborrowed in
accordance with the provisions hereof.
3.4 TERMINATION AND REDUCTION OF COMMITMENTS
(a) VOLUNTARY REDUCTIONS. The Commitments may be terminated or
permanently reduced by the Borrower in whole or in part upon three (3) Business
Days' prior written notice to the Administrative Agent; PROVIDED that (i) after
giving effect to any voluntary reduction, the aggregate principal amount of
Loans plus LOC Obligations outstanding shall not exceed the Aggregate Revolving
Committed Amount, as reduced, and (ii) partial reductions shall be in minimum
principal amounts of $5,000,000, and in integral multiples of $1,000,000 in
excess thereof.
(b) MANDATORY REDUCTION. The Commitments hereunder shall terminate on
the Maturity Date.
3.5 FEES.
(a) COMMITMENT FEE. In consideration of the Commitments, the Borrower
agrees to pay to the Administrative Agent for the ratable benefit of the Lenders
holding Commitments a commitment fee (the "COMMITMENT FEE") in an amount equal
to the Applicable Percentage per annum on the average daily unused amount of the
Aggregate Revolving Committed Amount. For purposes of computation of the
Commitment Fee, LOC Obligations shall be considered usage of the Aggregate
Revolving Committed Amount. The Commitment Fee shall be payable quarterly in
arrears on the 15th day following the last day of each calendar quarter for the
prior calendar quarter.
(b) LETTER OF CREDIT FEES. In consideration of the LOC Commitments, the
Borrower agrees to pay to the Issuing Lender a fee (the "LETTER OF CREDIT FEE")
equal to the Applicable Percentage per annum on the average daily maximum amount
available to be drawn under each Letter of Credit from the date of issuance to
the date of expiration. In addition to such Letter of Credit Fee, the Issuing
Lender may charge, and retain for its own account without sharing by the other
Lenders, an additional fronting fee of one-eighth of one percent (0.125%) per
annum on the average daily maximum amount available to be drawn under each such
Letter of Credit issued by it. The Issuing Lender shall promptly pay over to the
Administrative Agent for the ratable benefit of the Lenders (including the
Issuing Lender) the Letter of Credit Fee. The Letter of Credit Fee shall be
payable quarterly in arrears on the 15th day following the last day of each
calendar quarter for the prior calendar quarter.
(c) ISSUING LENDER FEES. In addition to the Letter of Credit Fees
payable pursuant to subsection (b) hereof, the Borrower shall pay to the Issuing
Lender for its own account without sharing by the other Lenders the reasonable
and customary charges from time to time of the Issuing Lender with respect to
the amendment, transfer, administration, cancellation and conversion of, and
drawings under, such Letters of Credit (collectively, the "ISSUING LENDER
FEES").
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(d) ADMINISTRATIVE FEE. The Borrower agrees to pay to the
Administrative Agent the annual administrative fee as described in the Fee
Letter.
3.6 COMPUTATION OF INTEREST AND FEES.
(a) Interest payable hereunder with respect to Alternate Base Rate
Loans based on the Prime Rate shall be calculated on the basis of a year of 365
days (or 366 days, as applicable) for the actual days elapsed. All other fees,
interest and all other amounts payable hereunder shall be calculated on the
basis of a 360 day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the Lenders of each
determination of a LIBOR Rate on the Business Day of the determination thereof.
Any change in the interest rate on a Loan resulting from a change in the
Alternate Base Rate shall become effective as of the opening of business on the
day on which such change in the Alternate Base Rate shall become effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of the effective date and the amount of each such change.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Credit Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the computations used by the Administrative Agent
in determining any interest rate.
3.7 PRO RATA TREATMENT AND PAYMENTS.
(a) Each borrowing of Revolving Loans and any reduction of the
Commitments shall be made PRO RATA according to the respective Commitment
Percentages of the Lenders. Each payment under this Credit Agreement or any Note
shall be applied (i) first, to any Fees then due and owing, (ii) second, to
interest then due and owing in respect of the Notes of the Borrower and (iii)
third, to principal then due and owing hereunder and under the Notes of the
Borrower. Each payment on account of the Commitment Fees or the Letter of Credit
Fees shall be made PRO RATA in accordance with the respective amounts due and
owing. Each payment (other than voluntary repayments and mandatory prepayments)
by the Borrower on account of principal of and interest on the Revolving Loans
shall be made PRO RATA according to the respective amounts due and owing
hereunder. Each voluntary repayment and mandatory prepayment on account of
principal of the Loans shall be applied in accordance with Section 3.3. All
payments (including prepayments) to be made by the Borrower on account of
principal, interest and fees shall be made without defense, set-off or
counterclaim (except as provided in Section 3.13(b)) and shall be made to the
Administrative Agent for the account of the Lenders at the Administrative
Agent's office specified in Section 11.2 in Dollars and in immediately available
funds not later than 1:00 P.M. on the date when due. The Administrative Agent
shall distribute such payments to the Lenders entitled thereto promptly upon
receipt in like funds as received. If any payment hereunder (other than payments
on the LIBOR Rate Loans) becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day, and,
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension. If any payment on a LIBOR Rate Loan
becomes due and payable on
27
a day other than a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day.
(b) ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT. Notwithstanding any
other provision of this Credit Agreement to the contrary, after the occurrence
and during the continuance of an Event of Default, all amounts collected or
received by the Administrative Agent or any Lender on account of the Credit
Party Obligations or any other amounts outstanding under any of the Credit
Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Administrative Agent in connection with enforcing the rights of
the Lenders under the Credit Documents;
SECOND, to payment of any fees owed to the Administrative
Agent;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation, reasonable attorneys' fees)
of each of the Lenders in connection with enforcing its rights under
the Credit Documents or otherwise with respect to the Credit Party
Obligations owing to such Lender;
FOURTH, to the payment of all of the Credit Party Obligations
consisting of accrued fees and interest (including, without limitation,
accrued fees and interest arising under any Hedging Agreement between
any Credit Party and any Lender, or any Affiliate of a Lender);
FIFTH, to the payment of the outstanding principal amount of
the Credit Party Obligations (including, without limitation, the
payment or cash collateralization of the outstanding LOC Obligations
and payment of the outstanding principal amount arising under any
Hedging Agreement between any Credit Party and any Lender, or any
Affiliate of a Lender, to the extent such Hedging Agreement is
permitted by Section 7.1(e));
SIXTH, to all other Credit Party Obligations and other
obligations which shall have become due and payable under the Credit
Documents or otherwise and not repaid pursuant to clauses "FIRST"
through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in
the numerical order provided until exhausted prior to application to
the next succeeding category and (ii) each of the Lenders shall receive
an amount equal to its pro rata share (based on the proportion that the
then outstanding Loans and LOC Obligations held by such Lender bears to
the aggregate then outstanding Loans and LOC Obligations) of amounts
available to be applied pursuant to clauses "THIRD", "FOURTH", "FIFTH"
and "SIXTH" above.
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3.8 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT.
(a) Unless the Administrative Agent shall have been notified in writing
by a Lender prior to the date a Loan is to be made by such Lender (which notice
shall be effective upon receipt) that such Lender does not intend to make the
proceeds of such Loan available to the Administrative Agent, the Administrative
Agent may assume that such Lender has made such proceeds available to the
Administrative Agent on such date, and the Administrative Agent may in reliance
upon such assumption (but shall not be required to) make available to the
Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent, the Administrative Agent shall be
able to recover such corresponding amount from such Lender. If such Lender does
not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent will promptly notify the Borrower, and
the Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to recover
from the Lender or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative Agent at a per
annum rate equal to (i) from the Borrower at the applicable rate for the
applicable borrowing pursuant to the Notice of Borrowing and (ii) from a Lender
at the Federal Funds Rate.
(b) Unless the Administrative Agent shall have been notified in writing
by the Borrower, prior to the date on which any payment is due from it hereunder
(which notice shall be effective upon receipt) that the Borrower does not intend
to make such payment, the Administrative Agent may assume that such Borrower has
made such payment when due, and the Administrative Agent may in reliance upon
such assumption (but shall not be required to) make available to each Lender on
such payment date an amount equal to the portion of such assumed payment to
which such Lender is entitled hereunder, and if the Borrower has not in fact
made such payment to the Administrative Agent, such Lender shall, on demand,
repay to the Administrative Agent the amount made available to such Lender. If
such amount is repaid to the Administrative Agent on a date after the date such
amount was made available to such Lender, such Lender shall pay to the
Administrative Agent on demand interest on such amount in respect of each day
from the date such amount was made available by the Administrative Agent at a
per annum rate equal to, if repaid to the Administrative Agent within two (2)
days from the date such amount was made available by the Administrative Agent,
the Federal Funds Rate and thereafter at a rate equal to the Alternate Base
Rate.
(c) A certificate of the Administrative Agent submitted to the Borrower
or any Lender with respect to any amount owing under this Section 3.8 shall be
conclusive in the absence of manifest error.
3.9 INABILITY TO DETERMINE INTEREST RATE.
Notwithstanding any other provision of this Credit Agreement, if (i)
the Administrative Agent shall reasonably determine (which determination shall
be conclusive and binding absent manifest error) that, by reason of
circumstances affecting the relevant market, reasonable and
29
adequate means do not exist for ascertaining LIBOR for such Interest Period, or
(ii) the Required Lenders shall reasonably determine (which determination shall
be conclusive and binding absent manifest error) that the LIBOR Rate does not
adequately and fairly reflect the cost to such Lenders of funding LIBOR Rate
Loans that the Borrower has requested be outstanding as a LIBOR tranche during
such Interest Period, the Administrative Agent shall forthwith give telephone
notice of such determination, confirmed in writing, to the Borrower, and the
Lenders at least two Business Days prior to the first day of such Interest
Period. Unless the Borrower shall have notified the Administrative Agent upon
receipt of such telephone notice that it wishes to rescind or modify its request
regarding such LIBOR Rate Loans, any Loans that were requested to be made as
LIBOR Rate Loans shall be made as Alternate Base Rate Loans and any Loans that
were requested to be converted into or continued as LIBOR Rate Loans shall
remain as or be converted into Alternate Base Rate Loans. Until any such notice
has been withdrawn by the Administrative Agent, no further Loans shall be made
as, continued as, or converted into, LIBOR Rate Loans for the Interest Periods
so affected.
3.10 ILLEGALITY.
Notwithstanding any other provision of this Credit Agreement, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof by the relevant Governmental Authority to any Lender shall
make it unlawful for such Lender or its LIBOR Lending Office to make or maintain
LIBOR Rate Loans as contemplated by this Credit Agreement or to obtain in the
interbank eurodollar market through its LIBOR Lending Office the funds with
which to make such Loans, (a) such Lender shall promptly notify the
Administrative Agent and the Borrower thereof, (b) the commitment of such Lender
hereunder to make LIBOR Rate Loans or continue LIBOR Rate Loans as such shall
forthwith be suspended until the Administrative Agent shall give notice that the
condition or situation which gave rise to the suspension shall no longer exist,
and (c) such Lender's Loans then outstanding as LIBOR Rate Loans, if any, shall
be converted on the last day of the Interest Period for such Loans or within
such earlier period as required by law to Alternate Base Rate Loans. The
Borrower hereby agrees promptly to pay any Lender, upon its demand, any
additional amounts necessary to compensate such Lender for actual and direct
costs (but not including anticipated profits) reasonably incurred by such Lender
including, but not limited to, any interest or fees payable by such Lender to
lenders of funds obtained by it in order to make or maintain its LIBOR Rate
Loans hereunder. A certificate as to any additional amounts payable pursuant to
this Section submitted by such Lender, through the Administrative Agent, to the
Borrower shall be conclusive in the absence of manifest error. Each Lender
agrees to use reasonable efforts (including reasonable efforts to change its
LIBOR Lending Office) to avoid or to minimize any amounts which may otherwise be
payable pursuant to this Section; PROVIDED, HOWEVER, that such efforts shall not
cause the imposition on such Lender of any additional costs or legal or
regulatory burdens deemed by such Lender in its sole discretion to be material.
3.11 REQUIREMENTS OF LAW.
(a) If the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof or compliance by any Lender with any
request or directive
30
(whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the date hereof:
(i) shall subject such Lender to any tax of any kind
whatsoever with respect to any LIBOR Rate Loan made by it, or change
the basis of taxation of payments to such Lender in respect thereof
(except for changes in the rate of tax on the overall net income of
such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the LIBOR Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Lender of making or maintaining LIBOR Rate Loans or to reduce any amount
receivable hereunder or under any Note (other than costs or reductions relating
to taxes which shall be governed exclusively by Section 3.13 hereof), then, in
any such case, the Borrower shall promptly pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such additional cost
or reduced amount receivable which such Lender reasonably deems to be material
as determined by such Lender with respect to its LIBOR Rate Loans. A certificate
as to any additional amounts payable pursuant to this Section submitted by such
Lender, through the Administrative Agent, to the Borrower shall be conclusive in
the absence of manifest error. Each Lender agrees to use reasonable efforts
(including reasonable efforts to change its LIBOR Lending Office, as the case
may be) to avoid or to minimize any amounts which might otherwise be payable
pursuant to this paragraph of this Section; PROVIDED, HOWEVER, that such efforts
shall not cause the imposition on such Lender of any additional costs or legal
or regulatory burdens deemed by such Lender in its sole discretion to be
material.
(b) If any Lender shall have reasonably determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any central bank
or Governmental Authority made subsequent to the date hereof does or shall have
the effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount reasonably
deemed by such Lender in its sole discretion to be material, then from time to
time, within fifteen (15) days after demand by such Lender, the Borrower shall
pay to such Lender such additional amount as shall be certified by such Lender
as being required to compensate it for such reduction. Such a certificate as to
any additional amounts payable under this Section submitted by a Lender (which
certificate shall include a description of the basis for
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the computation), through the Administrative Agent, to the Borrower shall be
conclusive absent manifest error.
(c) The agreements in this Section 3.11 shall survive the termination
of this Credit Agreement and payment of the Notes and all other amounts payable
hereunder.
3.12 INDEMNITY.
The Borrower hereby agrees to indemnify each Lender and to hold such
Lender harmless from any funding loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in payment of the
principal amount of or interest on any Loan by such Lender in accordance with
the terms hereof, (b) default by the Borrower in accepting a borrowing after the
Borrower has given a notice in accordance with the terms hereof, (c) default by
the Borrower in making any repayment after the Borrower has given a notice in
accordance with the terms hereof, and/or (d) the making by the Borrower of a
repayment or prepayment of a Loan, or the conversion thereof, on a day which is
not the last day of the Interest Period with respect thereto, in each case
including, but not limited to, any such loss or expense arising from interest or
fees payable by such Lender to lenders of funds obtained by it in order to
maintain its Loans hereunder. A certificate as to any additional amounts payable
pursuant to this Section submitted by any Lender, through the Administrative
Agent, to the Borrower (which certificate must be delivered to the
Administrative Agent within thirty days following such default, repayment,
prepayment or conversion) shall be conclusive in the absence of manifest error.
The agreements in this Section shall survive termination of this Credit
Agreement and payment of the Notes and all other amounts payable hereunder.
3.13 TAXES.
(a) All payments made by the Borrower hereunder or under any Note will
be, except to the extent required by law and except as provided in Section
3.13(b), made free and clear of, and without deduction or withholding for, any
present or future taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature now or hereafter imposed by any Governmental
Authority or by any political subdivision or taxing authority thereof or therein
with respect to such payments (but excluding (i) any tax imposed on or measured
by the net income or profits of a Lender pursuant to the laws of the
jurisdiction in which it is organized or the jurisdiction in which the principal
office or applicable lending office of such Lender is located or any subdivision
thereof or therein, (ii) any branch profits taxes imposed by the United States
or any similar tax imposed by any other jurisdiction in which the Borrower is
located and (iii) any taxes that would not have been imposed but for a
connection between a Lender and the jurisdiction imposing such tax other than a
connection arising solely from entering into this Credit Agreement or any other
Credit Documents) and all interest, penalties or similar liabilities with
respect thereto (all such non-excluded taxes, levies, imposts, duties, fees,
assessments or other charges being referred to collectively as "TAXES"). If any
Taxes are required by law to be withheld or deducted by the Borrower from or in
respect of any sum payable hereunder or under any Note, (i) the sum payable
shall be increased as may be necessary so that every payment of all amounts due
under this Credit Agreement or under any Note, after withholding or deduction
for or on account of any Taxes, will not be less than the amount provided for
herein or in such Note,
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(ii) the Borrower shall make such deductions or withholdings and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law. The Borrower will furnish
to the Administrative Agent as soon as practicable after the date the payment of
any Taxes is due pursuant to applicable law certified copies (to the extent
reasonably available and required by law) of tax receipts evidencing such
payment by the Borrower. If liability for Taxes is asserted against a Lender,
the Lender shall provide notice to the Borrower of such liability, and the
Borrower shall indemnify and hold harmless such Lender, and reimburse such
Lender upon its written request, for the amount of any Taxes so levied or
imposed and paid by such Lender. A Lender's failure to provide notice to the
Borrower shall not relieve the Borrower of any of its obligations under the
preceding sentence, however, notwithstanding the foregoing, where notice is not
given within one hundred and twenty (120) days after the Lender receives written
notice of the assertion of Taxes and the Borrower does not otherwise have notice
of such assertion, no indemnification shall be required for penalties, additions
to Taxes, expenses and interest accruing on such Taxes from the date one hundred
and twenty (120) days after the receipt by the Lender of written notice of the
assertion of such Taxes until thirty (30) days after the date such notice was
actually received by the Borrower. Each Lender shall use reasonable efforts to
cooperate with the Borrower in seeking a refund of any such Tax payment, which,
in the opinion of the independent certified accountants to the Borrower, has not
been correctly or legally asserted. In the event that an administrative or
judicial proceeding is commenced involving any Lender which, if determined
adversely to it, would result in the payment of Taxes, such Lender shall
promptly notify the Borrower and shall cooperate with and assist the Borrower to
reduce or recover amounts with respect to such Taxes.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower
and the Administrative Agent on or prior to the Closing Date, or in the case of
a Lender that is an assignee or transferee of an interest under this Credit
Agreement pursuant to Section 11.6 (unless the respective Lender was already a
Lender hereunder immediately prior to such assignment or transfer), on the date
of such assignment or transfer to such Lender, (i) if the Lender is a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, two accurate and
complete original signed copies of Internal Revenue Service Form W-8BEN or
W-8ECI (or successor forms) (or, in the case of a partnership, an Internal
Revenue Service Form W-8IMY with appropriate Internal Revenue Service Forms W-8
of its Partners attached) certifying such Lender's entitlement to a complete
exemption from United States federal withholding tax with respect to payments to
be made under this Credit Agreement and under any Note, or (ii) if the Lender is
not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, either
Internal Revenue Service Form W-8BEN or W-8ECI as set forth in clause (i) above,
or (x) a certificate substantially in the form of SCHEDULE 3.13 (any such
certificate, a "3.13 CERTIFICATE") and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8BEN (or successor form) (or,
in the case of a partnership, an Internal Revenue Service Form W-8IMY with
appropriate Internal Revenue Service Forms W-8 of its Partners attached)
certifying such Lender's entitlement to an exemption from United States federal
withholding tax with respect to payments of interest to be made under this
Credit Agreement and under any Note. In addition, each Lender agrees that it
will deliver upon the Borrower's request updated versions of the foregoing, as
applicable, whenever the previous certification has become obsolete or
inaccurate in any material respect, together with such other forms as may be
required in order to confirm or establish the entitlement of such Lender to a
33
continued exemption from or reduction in United States federal withholding tax
with respect to payments under this Credit Agreement and any Note.
Notwithstanding anything to the contrary contained in Section 3.13(a), but
subject to the immediately succeeding sentence, (x) the Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
Taxes imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, fees or other amounts payable
hereunder for the account of any Lender which is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for United States
federal income tax purposes to the extent that such Lender has not provided to
the Borrower United States Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower shall
not be obligated pursuant to Section 3.13(a) hereof to indemnify or gross-up
payments to be made to a Lender in respect of Taxes imposed by the United States
if (I) such Lender has not provided to the Borrower the Internal Revenue Service
Forms required to be provided to the Borrower pursuant to this Section 3.13(b)
or (II) in the case of a payment, other than interest, to a Lender described in
clause (ii) above, to the extent that such Forms do not establish a complete
exemption from withholding of such Taxes. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section 3.13,
the Borrower agrees to pay additional amounts and to indemnify each Lender in
the manner set forth in Section 3.13(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any Taxes
deducted or withheld by it as described in the immediately preceding sentence as
a result of any changes after the Closing Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of Taxes; provided, however,
that if a Lender is able to avoid or reduce such Taxes by complying with
applicable information reporting, certification or identification requirements,
such Lender must comply with such requirements to obtain the benefits of this
sentence.
(c) Each Lender agrees to use reasonable efforts (including reasonable
efforts to change its LIBOR Lending Office, as the case may be) to avoid or to
minimize any amounts which might otherwise be payable pursuant to this Section;
PROVIDED, HOWEVER, that such efforts shall not cause the imposition on such
Lender of any additional costs or legal or regulatory burdens deemed by such
Lender in its sole discretion to be material.
(d) If the Borrower pays any additional amount pursuant to this Section
3.13 with respect to a Lender, such Lender shall use reasonable efforts to
obtain a refund of tax or credit against its tax liabilities on account of such
payment; PROVIDED that such Lender shall have no obligation to use such
reasonable efforts if either (i) it is in an excess foreign tax credit position
or (ii) it believes in good faith, in its sole discretion, that claiming a
refund or credit would cause adverse tax consequences to it. In the event that
such Lender receives such a refund or credit, such Lender shall pay to the
Borrower an amount that such Lender reasonably determines is equal to the net
tax benefit obtained by such Lender as a result of such payment by the Borrower.
(e) The agreements in this Section 3.13 shall survive the termination
of this Credit Agreement and the payment of the Notes and all other amounts
payable hereunder.
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3.14 INDEMNIFICATION; NATURE OF ISSUING LENDER'S DUTIES.
(a) In addition to its other obligations under Section 2.2, the
Borrower hereby agrees to protect, indemnify, pay and hold the Issuing Lender
harmless from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys' fees) that
the Issuing Lender may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit, except to the extent
resulting from the gross negligence, bad faith or willful misconduct of the
Issuing Lender or (ii) the failure of the Issuing Lender to honor a drawing
under a Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions, herein called "GOVERNMENT
ACTS").
(b) As between the Borrower and the Issuing Lender, the Borrower shall
assume all risks of the acts, omissions or misuse of any Letter of Credit by the
beneficiary thereof. The Issuing Lender shall not be responsible for: (i) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any Letter of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii)
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (iii) failure of the beneficiary of a
Letter of Credit to comply fully with conditions required in order to draw upon
a Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (v) errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under a Letter of Credit or of the
proceeds thereof; and (vii) any consequences arising from causes beyond the
control of the Issuing Lender, including, without limitation, any Government
Acts. None of the above shall affect, impair, or prevent the vesting of the
Issuing Lender's rights or powers hereunder.
(c) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the Issuing
Lender, under or in connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put such Issuing
Lender under any resulting liability to the Borrower. It is the intention of the
parties that this Credit Agreement shall be construed and applied to protect and
indemnify the Issuing Lender against any and all risks involved in the issuance
of the Letters of Credit, all of which risks are hereby assumed by the Borrower,
including, without limitation, any and all risks of the acts or omissions,
whether rightful or wrongful, of any Government Authority. The Issuing Lender
shall not, in any way, be liable for any failure by the Issuing Lender or anyone
else to pay any drawing under any Letter of Credit as a result of any Government
Acts or any other cause beyond the control of the Issuing Lender.
(d) Nothing in this Section 3.14 is intended to limit the reimbursement
obligation of the Borrower contained in Section 2.2 hereof. The obligations of
the Borrower under this Section 3.14 shall survive the termination of this
Credit Agreement. No act or omissions of any
35
current or prior beneficiary of a Letter of Credit shall in any way affect or
impair the rights of the Issuing Lender to enforce any right, power or benefit
under this Credit Agreement.
(e) Notwithstanding anything to the contrary contained in this Section
3.14, the Borrower shall have no obligation to indemnify any Issuing Lender in
respect of any liability incurred by such Issuing Lender arising out of the
gross negligence, bad faith or willful misconduct of the Issuing Lender, as
determined by a court of competent jurisdiction.
3.15 REPLACEMENT OF LENDERS; OTHER LIMITATIONS.
(a) If any Lender shall petition the Borrower for any increased cost or
amounts under Section 3.10 or 3.11(a) or shall notify the Borrower that its
obligation to make or maintain LIBOR Rate Loans has been suspended under Section
3.11(b) (any such Lender being hereinafter referred to as a "REPLACED LENDER"),
then the Borrower may, so long as no Default or Event of Default shall have
occurred and be continuing, at the Borrower's expense, within sixty (60) days of
receipt of such petition or notice and upon at least five (5) Business Days'
notice to the Administrative Agent and such Replaced Lender, designate a
replacement lender (a "REPLACEMENT LENDER") acceptable to the Administrative
Agent in its reasonable discretion (except if the Replacement Lender is an
existing Lender), to which such Replaced Lender shall, subject to its receipt
(unless a later date for the remittance thereof shall be agreed upon by the
Borrower and the Replaced Lender) of all amounts owed to such Replaced Lender
under Section 3.11(a) or 3.11(b), assign all (but not less than all) of its
rights, obligations, Loans and Commitment hereunder; PROVIDED that (x) all
amounts owed to such Replaced Lender by the Borrower (except liabilities which
by the terms hereof survive the payment in full of the Loans and termination of
this Credit Agreement) shall be paid in full as of the date of such assignment
and (y) on the date of such assignment, such Replacement Lender shall have paid
such Replaced Lender an amount equal to the greater of the (i) par value or (ii)
fair market value of the outstanding principal amount of such Replaced Lender's
Loans and/or Commitments hereunder, as the case may be. Upon any assignment by
any Lender pursuant to this Section 3.15 becoming effective, the Replacement
Lender shall thereupon be deemed to be a "Lender" for all purposes of this
Credit Agreement and such Replaced Lender shall thereupon cease to be a "Lender"
for all purposes of this Credit Agreement and shall have no further rights or
obligations hereunder (other than pursuant to Sections 3.10, 3.11(a) and 3.11(b)
while such Replaced Lender was a Lender).
(b) If any Lender shall petition the Borrower for any increased cost or
amounts under Section 3.11 more than ninety (90) days after such Lender had
knowledge of the occurrence of the event giving rise to such increased costs or
amounts, the Borrower shall not be obligated to reimburse such Lender for
amounts incurred prior to the date on which the Borrower receives such petition
for increased costs or amounts (provided that if the event giving rise to the
increased costs or amounts is retroactive, then the ninety (90) day period
referenced above shall be extended to include the period of retroactive effect).
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SECTION 4
CONDITIONS
4.1 CONDITIONS TO CLOSING.
This Credit Agreement shall become effective upon, and the obligation
of each Lender to make the initial Loans is subject to, the satisfaction of the
following conditions precedent:
(a) EXECUTION OF CREDIT AGREEMENT AND CREDIT DOCUMENTS. Receipt of (i)
multiple counterparts of this Credit Agreement and (ii) a Note for each Lender,
in each case executed by a duly authorized officer of each party thereto and in
each case conforming to the requirements of this Credit Agreement.
(b) LEGAL OPINION. Receipt of a legal opinion of counsel to the Credit
Parties relating to this Credit Agreement and the other Credit Documents and the
transactions contemplated herein and therein, in form and substance reasonably
acceptable to the Administrative Agent and the Required Lenders, which opinion
shall include, without limitation, an opinion that the execution, delivery and
performance of the Credit Documents and the performance of the transactions
contemplated thereby will not conflict with, result in a breach of, require any
consent or permit any acceleration of (or require repayment of) any Indebtedness
of the Credit Parties or under any of the Credit Parties' corporate instruments
and material agreements.
(c) FINANCIAL INFORMATION. Receipt by the Administrative Agent of the
financial information of the Borrower and its Subsidiaries referred to in
Section 5.1, in form and substance satisfactory to the Administrative Agent.
(d) ABSENCE OF LEGAL PROCEEDINGS. Except as disclosed on SCHEDULE
4.1(d), the absence of any material pending or, to the best knowledge of the
Borrower, threatened action, suit, investigation, proceeding, bankruptcy or
insolvency, injunction, order or claim with respect to the Borrower or any of
its Subsidiaries.
(e) CORPORATE DOCUMENTS. Receipt of the following (or their equivalent)
for each Credit Party, each (other than with respect to clause (iv)) certified
by the secretary or assistant secretary of such Credit Party as of the Closing
Date to be true and correct and in force and effect pursuant to a certificate
substantially in the form attached hereto as SCHEDULE 4.1(e):
(i) ARTICLES OF INCORPORATION. Copies of the articles of
incorporation or charter documents certified to be true and complete as
of a recent date by the appropriate Governmental Authority of the state
of its organization.
(ii) RESOLUTIONS. Copies of resolutions of the Board of
Directors or comparable managing body approving and adopting the
respective Credit Documents, the transactions contemplated therein and
authorizing execution and delivery thereof.
37
(iii) BYLAWS. Copies of the bylaws, operating agreement or
partnership agreement certified by a secretary or assistant secretary
as of the Closing Date to be true and correct and in force and effect
as of such date.
(iv) GOOD STANDING. Copies, where applicable, of certificates
of good standing, existence or its equivalent certified as of a recent
date by the appropriate Governmental Authorities of the State of
organization and each other State in which the failure to so qualify
and be in good standing would be reasonably likely to have a Material
Adverse Effect.
(f) FEES. Receipt by the Administrative Agent and the Lenders of all
fees, if any, then owing pursuant to the Fee Letter, Section 3.5 or pursuant to
any Credit Document.
(g) ACCOUNT DESIGNATION LETTER. Receipt by the Administrative Agent of
an executed counterpart of the Account Designation Letter.
(h) OFFICER'S CERTIFICATE. Receipt by the Administrative Agent of a
certificate of a Responsible Officer certifying that (i) each of the Borrower
and the Guarantors is solvent as of the Closing Date and (ii) the Borrower is in
pro forma compliance with all of the covenants in Section 6.7 both before and
after giving effect to any Loans to be made on the Closing Date.
(i) PAYMENT INSTRUCTIONS. Receipt by the Administrative Agent of
payment instructions with respect to each wire transfer to be made by the
Administrative Agent on behalf of the Lenders or the Borrower on the Closing
Date setting forth the amount of such transfer, the purpose of such transfer,
the name and number of the account to which such transfer is to be made, the
name and ABA number of the bank or other financial institution where such
account is located and the name and telephone number of an individual that can
be contacted to confirm receipt of such transfer.
(j) NO MATERIAL ADVERSE EFFECT. (i) No Material Adverse Effect shall
have occurred since July 28, 2001 and (ii) no material adverse effect on the
prospects of the Credit Parties and their Subsidiaries (taken as a whole) shall
have occurred since July 28, 2001. SCHEDULE 5.2 attached hereto sets forth a
description of certain occurrences which have transpired prior to the Closing
Date, which, in the aggregate, the Credit Parties believe could not be
reasonably expected to have a Material Adverse Effect.
(k) EXISTING INDEBTEDNESS. All of the existing Indebtedness for
borrowed money of the Borrower and its Subsidiaries (other than Indebtedness
permitted to exist pursuant to Section 7.1) shall be repaid in full and
terminated and all security interests and Liens (other than Permitted Liens)
related thereto (if any) shall be terminated on the Closing Date.
(l) CONSENTS. The Administrative Agent shall have received evidence
that all necessary governmental, corporate, shareholder and third party consents
and approvals, if any, in connection with the financings and other transactions
contemplated hereby have been received and no condition exists which would
reasonably be likely to restrain, prevent or impose any material adverse
conditions on the transactions contemplated hereby.
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(m) DUE DILIGENCE. The Administrative Agent and the Lead Arranger shall
have completed, in form and scope satisfactory thereto, due diligence on the
Borrower and its Subsidiaries, including legal and environmental due diligence
and due diligence related to management, strategy, material customers and
contracts.
(n) ADDITIONAL MATTERS. All other documents in connection with the
transactions contemplated by this Credit Agreement shall be reasonably
satisfactory in form and substance to the Administrative Agents and the Required
Lenders.
4.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligation of each Lender to make any Extension of Credit hereunder
is subject to the satisfaction of the following conditions precedent on the date
of making such Extension of Credit:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by any Credit Party herein or in any other Credit Document or which are
contained in any certificate furnished at any time under or in connection
herewith or therewith shall be true and correct in all material respects on and
as of the date of such Extension of Credit as if made on and as of such date
(except for those which expressly relate to an earlier date, in which case, they
are true and correct in all material respects as of such earlier date).
(b) NO DEFAULT OR EVENT OF DEFAULT. No Default or Event of Default
shall have occurred and be continuing on such date or after giving effect to the
Extension of Credit to be made on such date.
Each request for an Extension of Credit (including extensions and
conversions) and each acceptance by the Borrower of an Extension of Credit
(including extensions and conversions) shall be deemed to constitute a
representation and warranty by each of the Credit Parties as of the date of such
Loan that the conditions in subsections (a) and (b) of this Section have been
satisfied.
SECTION 5
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement and to make
Extensions of Credit herein provided for, each of the Credit Parties hereby
represents and warrants to the Administrative Agent and to each Lender that:
5.1 FINANCIAL CONDITION.
The Borrower has delivered to the Administrative Agent and the Lenders
(a) balance sheets and the related statements of income and of cash flows of the
Borrower and its Subsidiaries for fiscal years ended July 31, 1999, July 29,
2000 and July 28, 2001 audited by
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Deloitte & Touche, LLP, certified public accountants, present fairly in all
material respects the financial condition of the Borrower and its Subsidiaries
in accordance with GAAP as of such dates and (b) a company-prepared unaudited
balance sheet and related statements of income and cash flows for the quarter
ending January 31, 2002. The financial statements referred to in subsections (a)
and (b) above are, in all material respects, complete and correct and present
fairly the financial condition of the Borrower and its Subsidiaries as of such
dates. All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as disclosed therein).
5.2 NO MATERIAL ADVERSE CHANGE.
Since July 28, 2001, there has been no development or event which has
had or could reasonably be expected to have a Material Adverse Effect. SCHEDULE
5.2 attached hereto sets forth a description of certain occurrences which have
transpired prior to the Closing Date, which, in the aggregate, the Credit
Parties believe could not be reasonably expected to have a Material Adverse
Effect.
5.3 ORGANIZATION; EXISTENCE.
Each Credit Party (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate or other necessary power and authority, and the legal right to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged and (c) is duly qualified as a
foreign entity and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification, other than in such jurisdictions where the failure
to be so qualified and in good standing would not, in the aggregate, have a
Material Adverse Effect.
5.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each Credit Party has the corporate or other necessary power and
authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party and has taken all necessary corporate or other
action to authorize the execution, delivery and performance by it of the Credit
Documents to which it is a party. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with acceptance of extensions of credit
by the Borrower or the making of the guaranties hereunder or with the execution,
delivery or performance of any Credit Documents by the Credit Parties (other
than those which have been obtained) or with the validity or enforceability of
any Credit Document against the Credit Parties. Each Credit Document to which it
is a party constitutes a valid and legally binding obligation of each Credit
Party enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
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5.5 CONFLICT.
The execution, delivery and performance of the Credit Documents, the
borrowings hereunder and the use of the proceeds of the Loans will not (a)
violate any Requirement of Law applicable to the Borrower or any of its
Subsidiaries (except those as to which waivers or consents have been obtained),
(b) conflict with, result in a breach of or constitute a default under (i) the
articles of incorporation, bylaws or other organizational documents of such
Person, (ii) any material indenture, material agreement or other material
instrument to which such Person is a party or by which any of its properties may
be bound or (iii) any approval of any Governmental Authority relating to such
Person, or (c) result in, or require, the creation or imposition of any Lien on
any of their respective properties or revenues pursuant to any Requirement of
Law.
5.6 NO MATERIAL LITIGATION.
No claim, litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best knowledge of the
Credit Parties, threatened by or against any Credit Party or any of its
Subsidiaries or against any of their respective properties which (a) relates to
the Credit Documents or any of the transactions contemplated hereby or thereby
or (b) could reasonably be expected to have a Material Adverse Effect.
5.7 NO DEFAULT.
No Default or Event of Default has occurred and is continuing.
5.8 TAXES.
Each of the Credit Parties and its Subsidiaries has filed, or caused to
be filed, all tax returns (federal, state, local and foreign) required to be
filed and paid (a) all amounts of taxes shown thereon to be due (including
interest and penalties) and (b) all other taxes, fees, assessments and other
governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing by it, except for such taxes (i) which are
not yet delinquent or (ii) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP. Neither any of the Credit Parties nor any of its
Subsidiaries are aware as of the Closing Date of any proposed tax assessments
against it or any of its Subsidiaries which could reasonably be expected to have
a Material Adverse Effect.
5.9 ERISA.
Neither a Reportable Event nor an "accumulated funding deficiency"
(within the meaning of Section 412 of the Code or Section 302 of ERISA) has
occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code, except to the extent that any such occurrence or failure to comply
would not reasonably be expected to have a Material Adverse Effect. No
termination of a Single Employer Plan has occurred resulting in any liability
that has remained underfunded, and no Lien in favor
41
of the PBGC or a Plan has arisen, during such five-year period which could
reasonably be expected to have a Material Adverse Effect. The present value of
all accrued benefits under each Single Employer Plan (based on those assumptions
used to fund such Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued benefits by an amount
which, as determined in accordance with GAAP, could reasonably be expected to
have a Material Adverse Effect. Neither the Borrower nor any Commonly Controlled
Entity is currently subject to any liability for a complete or partial
withdrawal from a Multiemployer Plan which could reasonably be expected to have
a Material Adverse Effect.
5.10 GOVERNMENTAL REGULATIONS, ETC.
(a) No part of the proceeds of the Loans hereunder will be used,
directly or indirectly, for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation U, or for the purpose of purchasing or
carrying or trading in any securities. No Indebtedness being reduced or retired
out of the proceeds of the Loans hereunder was or will be incurred for the
purpose of purchasing or carrying any margin stock within the meaning of
Regulation U or any "margin security" within the meaning of Regulation T.
"Margin stock" within the meaning of Regulation U does not constitute more than
25% of the value of the consolidated assets of the Borrower and its
Subsidiaries. Neither the execution and delivery hereof by the Borrower, nor the
performance by it of any of the transactions contemplated by this Credit
Agreement (including, without limitation, the direct or indirect use of the
proceeds of the Loans) will violate or result in a violation of the Securities
Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, or
regulations issued pursuant thereto, or Regulation T, U or X.
(b) None of the Credit Parties is (i) an "investment company"
registered or required to be registered under the Investment Company Act of
1940, as amended, and is not controlled by such a company, or (ii) a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
5.11 SUBSIDIARIES.
Set forth on SCHEDULE 5.11 is a list of all the Subsidiaries of the
Credit Parties, including a list of the Material Domestic Subsidiaries of the
Borrower at the Closing Date, the jurisdiction of their incorporation and the
direct or indirect ownership interest of the Borrower therein.
5.12 USE OF PROCEEDS.
The Extensions of Credit will be used solely (a) to refinance certain
existing Indebtedness, (b) to provide general working capital, (c) for Permitted
Acquisitions and (d) for other general corporate purposes.
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5.13 COMPLIANCE WITH LAWS; CONTRACTUAL OBLIGATIONS.
Each Credit Party and each Subsidiary is in compliance with all
Requirements of Law, except to the extent that the failure to comply therewith
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. None of the Credit Parties is in default under or with
respect to any of its contractual obligations in any respect which could
reasonably be expected to have a Material Adverse Effect.
5.14 ACCURACY AND COMPLETENESS OF INFORMATION.
All factual information heretofore, contemporaneously or hereafter
furnished by or on behalf of the Credit Parties in writing to the Administrative
Agent or any Lender for purposes of or in connection with this Credit Agreement
or any other Credit Document, or any transaction contemplated hereby or thereby,
is or will be true and accurate in all material respects as of the date stated
therein and not incomplete by omitting to state any material fact necessary to
make such information not misleading. There is no fact now known to any of the
Credit Parties which has, or could reasonably be expected to have, a Material
Adverse Effect which fact has not been set forth herein, in the financial
statements of the Credit Parties furnished to the Administrative Agent and/or
the Lenders, or in any certificate, opinion or other written statement made or
furnished by the Credit Parties to the Administrative Agent and/or the Lenders.
5.15 ENVIRONMENTAL MATTERS.
(a) Except where such violation or liability could not reasonably be
expected to have a Material Adverse Effect and to the best knowledge of the
Credit Parties, the facilities and properties owned, leased or operated by any
of the Credit Parties and the Subsidiaries (the "PROPERTIES") do not contain any
Materials of Environmental Concern in amounts or concentrations which (i)
constitute a violation of, or (ii) have resulted in liability under, any
Environmental Law.
(b) Except where such violation could not reasonably be expected to
have a Material Adverse Effect and to the best knowledge of the Credit Parties,
the Properties and all operations of the Credit Parties and the Subsidiaries at
the Properties are in compliance, and have in the last three years been in
compliance, in all material respects with all applicable Environmental Laws, and
there is no contamination at or under the Properties or violation of any
Environmental Law with respect to the Properties or the business operated by any
of the Credit Parties (the "BUSINESS").
(c) Except where such violation or liability could not reasonably be
expected to have a Material Adverse Effect and except as set forth on SCHEDULE
5.15, none of the Credit Parties or any of its Subsidiaries has received any
written notice of, or otherwise become aware of, any violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the Properties or the Business.
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(d) Except where such violation or liability could not reasonably be
expected to have a Material Adverse Effect, Materials of Environmental Concern
have not been transported or disposed of from the Properties in violation of, or
in a manner or to a location which has given rise to liability under any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the Properties
in violation of, or in a manner that has given rise to liability under, any
applicable Environmental Law.
(e) Except as set forth on SCHEDULE 5.15, no judicial proceeding or
governmental or administrative action is pending or, to the knowledge of any
Credit Party, threatened, under any Environmental Law to which any of the Credit
Parties is or will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
directives outstanding under any Environmental Law with respect to the
Properties or the Business.
(f) Except where such violation or liability could not reasonably be
expected to have a Material Adverse Effect and except as set forth on SCHEDULE
5.15, there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of any of the Credit Parties in connection with the Properties or
otherwise in connection with the Business, in violation of or in amounts or in a
manner requiring remediation under Environmental Laws.
5.16 SOLVENCY.
The fair saleable value of each Credit Party's assets, measured on a
going concern basis, exceeds all probable liabilities, including those to be
incurred pursuant to this Credit Agreement. None of the Credit Parties (a) has
unreasonably small capital in relation to the business in which it is or
proposes to be engaged or (b) has incurred, or believes that it will incur after
giving effect to the transactions contemplated by this Credit Agreement, debts
beyond its ability to pay such debts as they become due.
5.17 NO BURDENSOME RESTRICTIONS.
None of the Borrower or any of its Subsidiaries is a party to any
agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any applicable law, rule or regulation
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.18 MATERIAL CONTRACTS.
SCHEDULE 5.18 sets forth a true and correct and complete list of all
Material Contracts currently in effect. All of the Material Contracts are in
full force and effect and no material defaults currently exist thereunder.
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5.19 INSURANCE.
As of the date hereof, the present insurance coverage of the Borrower
and its Subsidiaries is outlined as to carrier, policy number, expiration date,
type and amount on SCHEDULE 5.19 and such insurance coverage complies with the
requirements set forth in Section 6.5.
SECTION 6
AFFIRMATIVE COVENANTS
The Credit Parties covenant and agree that on the Closing Date, and so
long as this Credit Agreement is in effect and until the Commitments have been
terminated, no Loans remain outstanding and all amounts owing hereunder or under
any other Credit Document (other than indemnification obligations which survive
the termination of this Credit Agreement) have been paid in full, the Credit
Parties shall, and shall cause each Subsidiary to:
6.1 FINANCIAL STATEMENTS.
Furnish, or cause to be furnished, to the Administrative Agent and the
Lenders:
(a) AUDITED FINANCIAL STATEMENTS. As soon as available, but in any
event within 90 days after the end of each fiscal year of the Borrower, an
audited consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of the fiscal year and the related consolidated statements of income,
retained earnings, shareholders' equity and cash flows for the year, audited by
an independent certified public accounting firm of nationally recognized
standing, setting forth in each case in comparative form the figures for the
previous year, reported without a "going concern" or like qualification or
exception, or qualification indicating that the scope of the audit was
inadequate to permit such independent certified public accountants to certify
such financial statements without such qualification.
(b) COMPANY-PREPARED FINANCIAL STATEMENTS. As soon as available, but in
any event within 45 days after the end of each fiscal quarters of the Borrower,
a company-prepared consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of the quarter and related company-prepared
consolidated statements of income, retained earnings, shareholders' equity and
cash flows for such quarterly period and for the fiscal year to date; in each
case setting forth in comparative form the consolidated figures for the
corresponding period or periods of the preceding fiscal year or the portion of
the fiscal year ending with such period, as applicable, in each case subject to
normal recurring year-end audit adjustments.
(c) ANNUAL OPERATING BUDGET. As soon as available, but in any event
within 60 days after the end of each fiscal year of the Borrower, a copy of a
detailed annual operating budget of the Borrower and its Subsidiaries for the
next four fiscal quarter period prepared on a quarterly basis, in form and
substance reasonable satisfactory to the Administrative Agent, together with a
summary of the material assumptions made in the preparation of such annual
budget.
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All such financial statements shall be complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments) and shall be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods reflected
therein and further accompanied by a description of, and an estimation of the
effect on the financial statements on account of, a change in the application of
accounting principles as provided in Section 1.3.
6.2 CERTIFICATES; OTHER INFORMATION.
Furnish, or cause to be furnished, to the Administrative Agent for
distribution to the Lenders:
(a) ACCOUNTANT'S CERTIFICATE AND REPORTS. Concurrently with the
delivery of the financial statements referred to in Section 6.1(a) above, a
certificate of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default relating to
financial or accounting matters or violations of Section 6.7, except as
specified in such certificate.
(b) OFFICER'S CERTIFICATE. Concurrently with the delivery of the
financial statements referred to in Sections 6.1(a) and 6.1(b) above, a
certificate of a Responsible Officer, delivered to the Administrative Agent at
its credit contact address, with a copy to the Administrative Agent at its
syndication agency services address, in each case as set forth in Section 11.2,
stating that, to the best of such Responsible Officer's knowledge and belief,
(i) the financial statements fairly present in all material respects the
financial condition of the parties covered by such financial statements, (ii)
during such period each Credit Party has observed or performed its covenants and
other agreements hereunder and under the other Credit Documents, and satisfied
the conditions contained in this Credit Agreement to be observed, performed or
satisfied by it (except to the extent waived in accordance with the provisions
hereof) and (iii) such Responsible Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate. Such
certificate shall include the calculations required to indicate compliance with
Section 6.7 as of the last day of the period covered by such financial
statements. A form of Officer's Compliance Certificate is attached as SCHEDULE
6.2(B).
(c) PUBLIC INFORMATION. Promptly after the same are sent, copies of all
reports (other than those otherwise provided pursuant to Section 6.1) and other
financial information which any Credit Party sends to its public stockholders,
and promptly after the same are filed, copies of all financial statements and
non-confidential reports which any Credit Party may make to, or file with, the
Securities and Exchange Commission or any successor or analogous United States
Governmental Authority.
(d) MANAGEMENT LETTER. Promptly upon receipt thereof, a copy of any
other report or "management letter" submitted by independent accountants to any
Credit Party or any of its Subsidiaries in connection with any annual, interim
or special audit of the books of such Person.
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(e) PERMITTED ACQUISITION REPORT. Not less than twenty (20) Business
Days prior to the consummation of any Permitted Acquisition where the total
consideration, including, without limitation, assumed Indebtedness, earnout
payments and any other deferred payments (the "TOTAL CONSIDERATION") for such
Permitted Acquisition is expected to exceed $25,000,000:
(i) a reasonably detailed description of the material terms of
such Permitted Acquisition (including, without limitation, the purchase
price and method and structure of payment) and of each Target;
(ii) (A) if the Total Consideration is expected to be greater
than $25,000,000 but less than $75,000,000, audited financial
statements (or, if unavailable, management-prepared financial
statements) of the Target for its two (2) most recent fiscal years and
two (2) most recent fiscal quarters and (B) if the Total Consideration
is expected to be greater than or equal to $75,000,000, audited
financial statements of the Target for its two (2) most recent fiscal
years prepared by independent certified public accountants acceptable
to the Administrative Agent and unaudited fiscal year-to-date
statements for the two (2) most recent interim periods;
(iii) consolidated projected income statements of the Borrower
and its consolidated Subsidiaries (giving effect to such Permitted
Acquisition and the consolidation with the Borrower of each relevant
Target) for the three (3)-year period following the consummation of
such Permitted Acquisition, in reasonable detail, together with any
appropriate statement of assumptions and pro forma adjustments
reasonably acceptable to the Administrative Agent;
(iv) a certificate, in form and substance reasonably
satisfactory to the Administrative Agent, executed by a Responsible
Officer of the Borrower (A) setting forth the best good faith estimate
of the total consideration to be paid for each Target, (B) certifying
that (y) such Permitted Acquisition complies with the requirements of
this Credit Agreement and (z) after giving effect to such Permitted
Acquisition and any borrowings in connection therewith, the Borrower
believes in good faith that it will have sufficient availability under
the Aggregate Revolving Committed Amount to meet its ongoing working
capital requirements and (C) demonstrating compliance with clauses (b),
(d), (e) and (f) of the definition of the Permitted Acquisition; and
(v) any due diligence reports (including, but not limited to,
reports prepared by a "Big 5" accounting firm and customer surveys)
prepared by, or on behalf of, any Credit Party with respect to the
Target.
(f) REGULATION U CERTIFICATE. Upon the request of any Lender or the
Administrative Agent, a certificate in conformity with the requirements of FR
Form U-1 referred to in Regulation U, signed by a Responsible Officer, stating
that no part of the proceeds of the Loans under this Credit Agreement will be
used, directly or indirectly, for the purpose of purchasing or carrying any
"margin stock" within the meaning of Regulation U, or for the purpose of
purchasing or carrying or trading in any securities.
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(g) OTHER INFORMATION. Promptly, such additional financial and other
information as the Administrative Agent, at the request of any Lender, may from
time to time reasonably request.
6.3 NOTICES.
Give notice to the Administrative Agent and each Lender of:
(a) DEFAULTS. Promptly (but in any event within two (2) Business Days),
after any Credit Party knows or has reason to know thereof, the occurrence of
any Default or Event of Default.
(b) LEGAL PROCEEDINGS. Promptly, any litigation, or any investigation
or proceeding (including without limitation, any environmental proceeding) known
to a Credit Party, relating to a Credit Party or any of its Subsidiaries which,
if adversely determined, would reasonably be expected to have a Material Adverse
Effect.
(c) ERISA. Promptly, (i) the occurrence of (or if a Responsible Officer
determines it is reasonably expected to occur) any Reportable Event with respect
to any Plan, a failure to make any required material contribution to a Plan, the
creation of any Lien in favor of the PBGC (other than a Permitted Lien) or a
Plan or any withdrawal from, or the termination, Reorganization or Insolvency
of, any Multiemployer Plan or (ii) the institution of proceedings or the taking
of any other action by the PBGC or the Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Plan;
(d) OTHER. Promptly, any other development or event which a Responsible
Officer of the Borrower determines is reasonably likely to have a Material
Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto.
6.4 MAINTENANCE OF EXISTENCE; COMPLIANCE WITH LAWS; CONTRACTUAL
OBLIGATIONS.
(a) (i) Preserve, renew and keep in full force and effect its corporate
existence and (ii) take all reasonable action to maintain all rights,
privileges, licenses and franchises necessary or desirable in the normal conduct
of its business other than any such rights, privileges, licenses and franchises
the loss of which would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(b) Comply with all Requirements of Law (including, without limitation,
all Environmental Laws and ERISA) applicable to it except to the extent that
failure to comply therewith would not, in the aggregate, have a Material Adverse
Effect.
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(c) Fully perform and satisfy all of its obligations under all of its
contractual obligations except to the extent that failure to perform and satisfy
such obligations would not, in the aggregate, have a Material Adverse Effect.
6.5 MAINTENANCE OF PROPERTY; INSURANCE.
Keep all material property useful and necessary in its business in
reasonably good working order and condition (ordinary wear and tear excepted);
maintain with financially sound and reputable insurance companies casualty,
liability, business interruption and such other insurance (which may include
plans of self-insurance) with such coverage and deductibles, and in such amounts
as may be consistent with prudent business practice and in any event consistent
with normal industry practice; and furnish to the Administrative Agent, upon
written request, full information as to the insurance carried.
6.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its businesses and
activities; and permit, during regular business hours and upon reasonable notice
by the Administrative Agent, the Administrative Agent to visit and inspect any
of its properties and examine and make abstracts (including photocopies) from
any of its books and records at any reasonable time, and to discuss the
business, operations, properties and financial and other condition of the Credit
Parties and their Subsidiaries with officers and employees of the Credit Parties
and their Subsidiaries and with their independent certified public accountants.
The cost of the inspection referred to in the preceding sentence shall be for
the account of the Lenders unless an Event of Default has occurred and is
continuing, in which case the cost of such inspection shall be for the account
of the Borrower.
6.7 FINANCIAL COVENANTS.
(a) LEVERAGE RATIO. Maintain a Leverage Ratio, which shall be
calculated at the end of each fiscal quarter, of not greater than 2.25 to 1.0.
(b) INTEREST COVERAGE RATIO. Maintain an Interest Coverage Ratio, which
shall be calculated at the end of each fiscal quarter, of not less than 3.0 to
1.0.
(c) CONSOLIDATED TANGIBLE NET WORTH. Maintain Consolidated Tangible Net
Worth of not less than 80% of Consolidated Tangible Net Worth as of the Closing
Date PLUS 50% of Consolidated Net Income (if positive) from the Closing Date to
the date of computation PLUS 75% of the Equity Issuances made from the Closing
Date to the date of computation.
6.8 USE OF PROCEEDS.
Use the Loans solely for the purposes provided in Section 5.12.
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6.9 ADDITIONAL GUARANTORS.
Cause each of the Borrower's Material Domestic Subsidiaries which is
not a party to this Credit Agreement, whether newly formed, after acquired or
otherwise existing, to promptly become a "Guarantor" hereunder by way of
execution of a Joinder Agreement.
6.10 PAYMENT OF OBLIGATIONS.
Pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, all its taxes (Federal, state, local
and any other taxes) and all its other obligations and liabilities of whatever
nature and any additional costs that are imposed as a result of any failure to
so pay, discharge or otherwise satisfy such obligations and liabilities, except
when the amount or validity of such obligations, liabilities and costs is
currently being contested in good faith by appropriate proceedings and reserves,
if applicable, in conformity with GAAP with respect thereto have been provided
on the books of the Borrower or its Subsidiaries, as the case may be.
6.11 ENVIRONMENTAL LAWS.
(a) Comply in all material respects with, and take commercially
reasonably steps to ensure compliance in all material respects by all tenants
and subtenants, if any, with, all applicable Environmental Laws and obtain and
comply in all material respects with and maintain, and take commercially
reasonably steps to ensure that all tenants and subtenants obtain and comply in
all material respects with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws except to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not
reasonably be expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Administrative Agent and
the Lenders, and their respective employees, agents, officers and directors and
affiliates, from and against any and all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or nature
known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Credit Parties or any of
their Subsidiaries or their Properties, or any orders, requirements or demands
of Governmental Authorities related thereto, including, without limitation,
reasonable attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that
any of the foregoing arise out of the gross negligence or willful misconduct of
the party seeking indemnification therefor. The agreements in this paragraph
shall survive repayment of the Notes and all other amounts payable hereunder.
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SECTION 7
NEGATIVE COVENANTS
The Credit Parties covenant and agree that on the Closing Date, and so
long as this Credit Agreement is in effect and until the Commitments have been
terminated, no Loans remain outstanding and all amounts owing hereunder or under
any other Credit Document (other than indemnification obligations which survive
the termination of this Credit Agreement) have been paid in full, the Credit
Parties shall not and shall not permit any Subsidiary to:
7.1 INDEBTEDNESS.
Each of the Credit Parties will not, nor will it permit any of its
Subsidiaries to, contract, create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness arising or existing under this Credit Agreement and
the other Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries existing as of
the Closing Date as referenced in the financial statements referenced in Section
5.1 (and set out more specifically in SCHEDULE 7.1(b)) hereto and renewals,
refinancings or extensions thereof in a principal amount not in excess of that
outstanding as of the date of such renewal, refinancing or extension plus any
reasonable fees payable in connection therewith;
(c) Indebtedness of the Borrower and its Subsidiaries incurred after
the Closing Date consisting of Capital Leases or Indebtedness incurred to
provide all or a portion of the purchase price or cost of construction of an
asset provided that (i) such Indebtedness when incurred shall not exceed the
purchase price or cost of construction of such asset; (ii) no such Indebtedness
shall be refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing plus any reasonable fees
payable in connection therewith; and (iii) the total amount of all such
Indebtedness shall not exceed $15,000,000 at any time outstanding;
(d) unsecured intercompany Indebtedness among the Credit Parties,
PROVIDED that any such Indebtedness shall be fully subordinated to the Credit
Party Obligations hereunder on terms reasonably satisfactory to the
Administrative Agent;
(e) Indebtedness and obligations owing under Hedging Agreements entered
into in order to manage existing or anticipated interest rate, exchange rate or
commodity price risks and not for speculative purposes;
(f) Indebtedness and obligations of Credit Parties owing under
documentary letters of credit for the purchase of goods or other merchandise
generally;
(g) Guaranty Obligations in respect of Indebtedness of a Credit Party
to the extent such Indebtedness is permitted to exist or be incurred pursuant to
this Section 7.1;
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(h) obligations with respect to surety bonds incurred in the ordinary
course of business;
(i) unsecured Indebtedness in an aggregate amount not to exceed
$50,000,000 at any time outstanding, PROVIDED that any such Indebtedness shall
(i) be fully subordinated to the Credit Party Obligations hereunder, (ii) mature
no earlier than the first anniversary of the Maturity Date and (iii) be on terms
satisfactory to the Required Lenders; and
(j) other Indebtedness of the Borrower and its Subsidiaries which does
not exceed $50,000,000 in the aggregate at any time outstanding.
7.2 LIENS.
Each of the Credit Parties will not, nor will it permit any of its
Subsidiaries to, contract, create, incur, assume or permit to exist any Lien
with respect to any of its property or assets of any kind (whether real or
personal, tangible or intangible), whether now owned or hereafter acquired,
except for Permitted Liens.
7.3 NATURE OF BUSINESS.
Each of the Credit Parties will not, nor will it permit any of its
Subsidiaries to, alter the character of its business in any material respect
from that conducted as of the Closing Date.
7.4 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC.
Each of the Credit Parties will not, nor will it permit any of its
Subsidiaries to,
(a) dissolve, liquidate or wind up its affairs, sell, transfer, lease
or otherwise dispose of its property or assets or agree to do so at a future
time except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer, lease or other disposition of
inventory and materials in the ordinary course of business;
(ii) the sale, transfer or other disposition of cash and Cash
Equivalents;
(iii) (A) the disposition of property or assets as a direct
result of a Recovery Event or (B) the sale, lease, transfer or other
disposition of machinery, parts and equipment no longer used or useful
in the conduct of the business of the Borrower or any of its
Subsidiaries, so long as the net proceeds therefrom are used to replace
such machinery, parts and equipment or to purchase or otherwise acquire
new assets or property within 180 days of receipt of the net proceeds;
(iv) the sale, lease or transfer of property or assets between
Credit Parties; and
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(v) the sale, lease or transfer of property or assets not to
exceed $20,000,000 in the aggregate in any fiscal year;
PROVIDED, that, in the case of clauses (i), (iii) and (v) above, at least 75% of
the consideration received therefor by the Borrower or any such Subsidiary is in
the form of cash or Cash Equivalents; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction
or a series of related transactions) the property or assets of any Person (other
than purchases or other acquisitions of inventory, materials, property and
equipment in the ordinary course of business, except as otherwise limited or
prohibited herein) or (ii) enter into any transaction of merger or
consolidation, except for (A) investments or acquisitions permitted pursuant to
Section 7.5, and (B) the merger or consolidation of a Credit Party with and into
another Credit Party; PROVIDED that if the Borrower is a party thereto, the
Borrower will be the surviving corporation.
7.5 ADVANCES, INVESTMENTS AND LOANS.
Each of the Credit Parties will not, nor will it permit any of its
Subsidiaries to, make any Investment except for Permitted Investments.
7.6 TRANSACTIONS WITH AFFILIATES.
Except as permitted in subsection (iv) of the definition of Permitted
Investments, each of the Credit Parties will not, nor will it permit any of its
Subsidiaries to, enter into any transaction or series of transactions, whether
or not in the ordinary course of business, with any officer, director,
shareholder or Affiliate other than on terms and conditions substantially as
favorable as would be obtainable in a comparable arm's-length transaction with a
Person other than an officer, director, shareholder or Affiliate.
7.7 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS; MATERIAL CONTRACTS.
Each of the Credit Parties will not, nor will it permit any of its
Subsidiaries to, change its fiscal year. Each of the Credit Parties will not,
nor will it permit any of its Subsidiaries to, amend, modify or change its
articles of incorporation (or corporate charter or other similar organizational
document) or bylaws (or other similar document) in any manner materially adverse
to the interests of the Lenders without the prior written consent of the
Required Lenders. Each of the Credit Parties will not, nor will it permit any
Subsidiary to, without the prior written consent of the Administrative Agent,
amend, modify, cancel or terminate or fail to renew or extend or permit the
amendment, modification, cancellation or termination of any of the Material
Contracts, except in the event that such amendments, modifications,
cancellations or terminations could not reasonably be expected to have a
Material Adverse Effect.
7.8 LIMITATION ON RESTRICTED ACTIONS.
Each of the Credit Parties will not, nor will it permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or
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restriction on the ability of any such Person to (a) pay dividends or make any
other distributions to any Credit Party on its Capital Stock or with respect to
any other interest or participation in, or measured by, its profits, (b) pay any
Indebtedness or other obligation owed to any Credit Party, (c) make loans or
advances to any Credit Party, (d) sell, lease or transfer any of its properties
or assets to any Credit Party, or (e) act as a Guarantor and pledge its assets
pursuant to the Credit Documents or any renewals, refinancings, exchanges,
refundings or extension thereof, except (in respect of any of the matters
referred to in clauses (a)-(d) above) for such encumbrances or restrictions
existing under or by reason of (i) this Credit Agreement and the other Credit
Documents, (ii) applicable law, (iii) any document or instrument governing
Indebtedness incurred pursuant to Section 7.1(c); PROVIDED that any such
restriction contained therein relates only to the asset or assets constructed or
acquired in connection therewith, or (iv) any Permitted Lien or any document or
instrument governing any Permitted Lien; PROVIDED that any such restriction
contained therein relates only to the asset or assets subject to such Permitted
Lien.
7.9 RESTRICTED PAYMENTS.
Each of the Credit Parties will not, nor will it permit any of its
Subsidiaries to, directly or indirectly, declare, order, make or set apart any
sum for or pay any Restricted Payment, except (a) to make dividends payable
solely in the same class of Capital Stock of such Person, (b) to make dividends
or other distributions payable to any Credit Party (directly or indirectly
through Subsidiaries) and (c) so long as no Default or Event of Default has
occurred and is continuing or would result therefrom and so long as, after
giving effect to such payment on a pro forma basis, the Credit Parties would be
in compliance with the financial covenants set forth in Section 6.7 as of the
last fiscal quarter end, the Borrower may repurchase shares of its Capital Stock
during the term of this Credit Agreement in an aggregate amount not to exceed
$25,000,000.
7.10 SALE LEASEBACKS.
The Credit Parties will not, directly or indirectly, become or remain
liable as lessee or as guarantor or other surety with respect to any lease,
whether an operating lease or a Capital Lease, of any property (whether real,
personal or mixed), whether now owned or hereafter acquired, (a) which any
Credit Party has sold or transferred or is to sell or transfer to a Person which
is not another Credit Party or (b) which any Credit Party intends to use for
substantially the same purpose as any other property which has been sold or is
to be sold or transferred by such Credit Party to another Person which is not
another Credit Party in connection with such lease.
7.11 NO FURTHER NEGATIVE PLEDGES.
Each of the Credit Parties will not, nor will it permit any Subsidiary
to, enter into, assume or become subject to any agreement prohibiting or
otherwise restricting the creation or assumption of any Lien upon its properties
or assets, whether now owned or hereafter acquired, or requiring the grant of
any security for such obligation if security is given for some other obligation,
except (a) pursuant to this Credit Agreement and the other Credit Documents, (b)
pursuant to any document or instrument governing Indebtedness incurred pursuant
to Section 7.1(c) or Section 7.1(i), PROVIDED that any such restriction
contained therein relates only to the asset or assets constructed or acquired in
connection therewith and (c) in connection with any
54
Permitted Lien or any document or instrument governing any Permitted Lien,
PROVIDED that any such restriction contained therein relates only to the asset
or assets subject to such Permitted Lien.
SECTION 8
EVENTS OF DEFAULT
8.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "EVENT OF DEFAULT"):
(a) The Borrower shall fail to pay any principal on any Loan when due
in accordance with the terms hereof; or the Borrower shall fail to reimburse the
Issuing Lender for any LOC Obligations when due in accordance with the terms
hereof; or the Borrower shall fail to pay any interest on any Loan or any Fee or
other amount payable hereunder when due in accordance with the terms hereof and
such failure shall continue unremedied for three (3) Business Days (or any
Guarantor shall fail to pay on the Guaranty in respect of any of the foregoing
or in respect of any other Guaranty Obligations thereunder within the aforesaid
period of time); or
(b) Any representation or warranty made or deemed made herein or in any
of the other Credit Documents or which is contained in any certificate, document
or financial or other statement furnished at any time under or in connection
with this Credit Agreement shall prove to have been incorrect, false or
misleading in any material respect on or as of the date made or deemed made; or
(c) (i) Any Credit Party shall fail to perform, comply with or observe
any term, covenant or agreement applicable to it contained in Sections 6.3(a),
6.4(a) or 6.7 or in Section 7; or (ii) any Credit Party shall fail to perform,
comply with or observe any covenant or agreement contained in Section 6.1 and
such failure shall continue unremedied for a period of five (5) Business Days;
or (iii) any Credit Party shall fail to comply with any other covenant contained
in this Credit Agreement or the other Credit Documents or any other agreement,
document or instrument among any Credit Party, the Administrative Agent and the
Lenders or executed by any Credit Party in favor of the Administrative Agent or
the Lenders (other than as described in Sections 8.1(a), 8.1(b), 8.1(c)(i) or
8.1(c)(ii) above), and in the event such breach or failure to comply is capable
of cure, is not cured within thirty (30) days of its occurrence; or
(d) Any Credit Party or any of its Subsidiaries shall (i) default in
any payment of principal of or interest on any Indebtedness (other than the
Notes) in a principal amount outstanding of at least $10,000,000 in the
aggregate for the Credit Parties and their Subsidiaries beyond the period of
grace (not to exceed 30 days), if any, provided in the instrument or agreement
under which such Indebtedness was created, (ii) default in the observance or
performance of any other agreement or condition relating to any Indebtedness in
a principal amount outstanding of at least $10,000,000 in the aggregate for the
Credit Parties and their Subsidiaries or contained in any instrument or
agreement evidencing, securing or relating
55
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such Indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity or (iii) default in
the due performance or observance of any term, covenant or agreement under any
Material Contract beyond the period of grace (not to exceed 30 days), if any,
provided in such Material Contract and such default could reasonably be expected
to have a Material Adverse Effect; or
(e) (i) Any Credit Party or any of its Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or any
Credit Party or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against any Credit
Party or any of its Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii) there
shall be commenced against any Credit Party or any of its Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) any Credit Party or any of its
Subsidiaries shall take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the acts set forth in clauses (i),
(ii), or (iii) above; or (v) any Credit Party or any of its Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due; or
(f) One or more judgments or decrees shall be entered against any
Credit Party or any of its Subsidiaries involving in the aggregate a liability
(to the extent not paid when due or covered by insurance) of $10,000,000 or more
and all such judgments or decrees shall not have been paid and satisfied,
vacated, discharged, stayed or bonded pending appeal within 30 days from the
entry thereof; or
(g) (i) Any Person shall engage in any non-exempt "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan or any Lien in favor of the PBGC or a Plan (other than a Permitted Lien)
shall arise on the assets of the Borrower or any Commonly Controlled Entity,
(iii) a Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a Trustee is, in the reasonable
opinion of the Required Lenders, likely to result in the termination
56
of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) the Borrower, any of its
Subsidiaries or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Lenders is likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, any
Multiemployer Plan or (vi) any other similar event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through (vi)
above, such event or condition, together with all other such events or
conditions, if any, could have a Material Adverse Effect; or
(h) There shall occur a Change of Control; or
(i) The Guaranty or any provision thereof shall cease to be in full
force and effect or any Guarantor or any Person acting by or on behalf of any
Guarantor shall deny or disaffirm any Guarantor's obligations under the
Guaranty; or
(j) Any other Credit Document (other than those which are ministerial
in nature) shall fail to be in full force and effect or to give the
Administrative Agent and/or the Lenders the rights, powers and privileges
purported to be created thereby, or any Credit Party or any Person acting by or
on behalf of any Credit Party shall deny or disaffirm any Credit Party
Obligation.
8.2 ACCELERATION; REMEDIES.
Upon the occurrence and during the continuance of an Event of Default,
the Administrative Agent may, or upon the request and direction of the Required
Lenders shall, by written notice to the Borrower take any of the following
actions (including any combination of such actions):
(i) TERMINATION OF COMMITMENTS. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(ii) ACCELERATION. Declare the unpaid principal of and any
accrued interest in respect of all Loans and any and all other
indebtedness or obligations (including, without limitation, Fees) of
any and every kind owing by any Credit Party to the Administrative
Agent and/or any of the Lenders hereunder to be due and direct the
Borrower to pay to the Administrative Agent cash collateral as security
for the LOC Obligations for subsequent drawings under then outstanding
Letters of Credit an amount equal to the maximum amount of which may be
drawn under Letters of Credit then outstanding, whereupon the same
shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
each Credit Party.
(iii) ENFORCEMENT OF RIGHTS. Exercise any and all rights and
remedies created and existing under the Credit Documents, whether at
law or in equity.
(iv) RIGHTS UNDER APPLICABLE LAW. Exercise any and all rights
and remedies available to the Administrative Agent or the Lenders under
applicable law.
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Notwithstanding the foregoing, if (i) an Event of Default specified in Section
8.1(e) shall occur with respect to the Borrower or a Significant Subsidiary or
(ii) Events of Default specified in Section 8.1(e) shall occur with respect to
two or more Subsidiaries of the Borrower which are not Significant Subsidiaries
but whose assets or net income in the aggregate meet the specifications of a
Significant Subsidiary, then the Commitments shall automatically terminate and
all Loans, all accrued interest in respect thereof, all accrued and unpaid Fees
and other indebtedness or obligations owing to the Administrative Agent and/or
any of the Lenders hereunder automatically shall immediately become due and
payable without presentment, demand, protest or the giving of any notice or
other action by the Administrative Agent or the Lenders, all of which are hereby
waived by the Borrower.
SECTION 9
AGENCY PROVISIONS
9.1 APPOINTMENT.
Each Lender hereby irrevocably designates and appoints Wachovia as the
Administrative Agent of such Lender under this Credit Agreement, and each such
Lender irrevocably authorizes Wachovia, as the Administrative Agent for such
Lender, to take such action on its behalf under the provisions of this Credit
Agreement and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Credit Agreement,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Credit
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Credit Agreement or otherwise exist against the Administrative Agent.
9.2 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties under this
Credit Agreement by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care. Without
limiting the foregoing, the Administrative Agent may appoint one of its
affiliates as its agent to perform the functions of the Administrative Agent
hereunder relating to the advancing of funds to the Borrower and distribution of
funds to the Lenders and to perform such other related functions of the
Administrative Agent hereunder as are reasonably incidental to such functions.
9.3 EXCULPATORY PROVISIONS.
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Credit Agreement (except for its or
58
such Person's own gross negligence or willful misconduct) or (ii) responsible in
any manner to any of the Lenders for any recitals, statements, representations
or warranties made by any Credit Party or any officer thereof contained in this
Credit Agreement or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under or
in connection with, this Credit Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any of the Credit
Documents or for any failure of any Credit Party to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance by any Credit Party of any of the agreements contained in, or
conditions of, this Credit Agreement, or to inspect the properties, books or
records of any Credit Party.
9.4 RELIANCE BY ADMINISTRATIVE AGENT.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it in
good faith to be genuine and correct and to have been signed, sent or made by
the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Credit Parties), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless (a) a written notice of assignment, negotiation
or transfer thereof shall have been filed with the Administrative Agent and (b)
the Administrative Agent shall have received the written agreement of such
assignee to be bound hereby as fully and to the same extent as if such assignee
were an original Lender party hereto, in each case in form satisfactory to the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Credit Agreement unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under any of the Credit Documents in accordance with a request of the Required
Lenders or all of the Lenders, as may be required under this Credit Agreement,
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Notes.
9.5 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to this Credit Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; PROVIDED, HOWEVER, that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or
59
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders except
to the extent that this Credit Agreement expressly requires that such action be
taken, or not taken, only with the consent or upon the authorization of the
Required Lenders, or all of the Lenders, as the case may be.
9.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates has made any representation or warranty to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of the Credit Parties, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Credit Parties and made its own decision
to make its Loans hereunder and enter into this Credit Agreement. Each Lender
also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Credit Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Credit Parties. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Credit Parties which may
come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
9.7 INDEMNIFICATION.
The Lenders agree to indemnify the Administrative Agent in its capacity
hereunder (to the extent not reimbursed by the Credit Parties and without
limiting the obligation of the Credit Parties to do so), ratably according to
their respective Commitment Percentages in effect on the date on which
indemnification is sought under this Section, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Notes)
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of any Credit Document or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; PROVIDED,
HOWEVER, that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent resulting from the Administrative
Agent's gross negligence or willful misconduct, as determined by a court of
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competent jurisdiction pursuant to a final non-appealable judgment. The
agreements in this Section 9.7 shall survive the termination of this Credit
Agreement and payment of the Notes and all other amounts payable hereunder.
9.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower as
though the Administrative Agent were not the Administrative Agent hereunder.
With respect to its Loans made or renewed by it and any Note issued to it, the
Administrative Agent shall have the same rights and powers under this Credit
Agreement as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
9.9 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign as Administrative Agent upon 30
days' prior notice to the Borrower and the Lenders. If the Administrative Agent
shall resign as Administrative Agent under this Credit Agreement and the other
Credit Documents, then the Required Lenders shall appoint from among the Lenders
a successor agent for the Lenders, which successor agent shall be approved by
the Borrower (so long as no Event of Default has occurred and is continuing),
whereupon such successor agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Credit Agreement or
any holders of the Notes. After any retiring Administrative Agent's resignation
as Administrative Agent, the provisions of this Section 9.9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Credit Agreement.
9.10 OTHER AGENTS, ARRANGERS AND MANAGERS.
None of the Lenders or other Persons identified on the front page or
signature pages of this Credit Agreement as "Syndication Agent," "Lead Arranger"
or "Book Manager" shall have any right, power, obligation, liability,
responsibility or duty under this Credit Agreement other than, in the case of
the Syndication Agent, those applicable to all Lenders as such. Without limiting
the foregoing, none of the Lenders or other Persons so identified shall have or
be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or
other Persons so identified in deciding to enter into this Credit Agreement or
in taking or not taking action hereunder.
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SECTION 10
GUARANTY
10.1 THE GUARANTY.
In order to induce the Lenders to enter into this Credit Agreement and
to extend credit hereunder and in recognition of the direct benefits to be
received by the Guarantors from the Extensions of Credit hereunder, each of the
Guarantors hereby agrees with the Administrative Agent and the Lenders as
follows: the Guarantor hereby unconditionally and irrevocably jointly and
severally guarantees as primary obligor and not merely as surety the full and
prompt payment when due, whether upon maturity, by acceleration or otherwise, of
any and all Credit Party Obligations. If any or all of the Credit Party
Obligations becomes due and payable hereunder, each Guarantor unconditionally
promises to pay such Credit Party Obligations to the Administrative Agent and
the Lenders, or order, on demand, together with any and all reasonable expenses
which may be incurred by the Administrative Agent or the Lenders in collecting
any of the Credit Party Obligations.
Each Guarantor, the Administrative Agent and each Lender hereby
confirms that it is the intention of all such Persons that this Guaranty and the
obligations of each Guarantor hereunder not constitute a fraudulent transfer or
conveyance for the purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or
state law to the extent applicable to this Guaranty and the obligations of each
Guarantor hereunder. To effectuate the foregoing intention, the Administrative
Agent, the Lenders and the Guarantors hereby irrevocably agree that the
obligations of each Guarantor under this Guaranty at any time shall be limited
to the maximum amount as will result in the obligations of such Guarantor under
this Guaranty not constituting a fraudulent transfer or conveyance.
10.2 BANKRUPTCY.
Additionally, each of the Guarantors unconditionally and irrevocably
guarantees jointly and severally the payment of any and all Credit Party
Obligations of the Borrower to the Lenders whether or not due or payable by the
Borrower upon the occurrence of any of the events specified in Section 8.1(e),
and unconditionally promises to pay such Credit Party Obligations to the
Administrative Agent for the account of the Lenders, or order, on demand, in
lawful money of the United States. Each of the Guarantors further agrees that to
the extent that the Borrower or a Guarantor shall make a payment or a transfer
of an interest in any property to the Administrative Agent or any Lender, which
payment or transfer or any part thereof is subsequently invalidated, declared to
be fraudulent or preferential, or otherwise is avoided, and/or required to be
repaid to the Borrower or a Guarantor, the estate of the Borrower or a
Guarantor, a trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause, then to the extent of such
avoidance or repayment, the obligation or part thereof intended to be satisfied
shall be revived and continued in full force and effect as if said payment had
not been made.
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10.3 NATURE OF LIABILITY.
The liability of each Guarantor hereunder is exclusive and independent
of any security for or other guaranty of the Credit Party Obligations of the
Borrower whether executed by any such Guarantor, any other guarantor or by any
other party, and no Guarantor's liability hereunder shall be affected or
impaired by (a) any direction as to application of payment by the Borrower or by
any other party, or (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Credit Party
Obligations of the Borrower, or (c) any payment on or in reduction of any such
other guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by the Borrower, or (e) any payment made to the
Administrative Agent or the Lenders on the Credit Party Obligations which the
Administrative Agent or such Lenders repay the Borrower pursuant to court order
in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and each of the Guarantors waives any right to the deferral
or modification of its obligations hereunder by reason of any such proceeding.
10.4 INDEPENDENT OBLIGATION.
The obligations of each Guarantor hereunder are independent of the
obligations of any other guarantor or the Borrower, and a separate action or
actions may be brought and prosecuted against each Guarantor whether or not
action is brought against any other guarantor or the Borrower and whether or not
any other Guarantor or the Borrower is joined in any such action or actions.
10.5 AUTHORIZATION.
Each of the Guarantors authorizes the Administrative Agent and each
Lender without notice or demand (except as shall be required by applicable
statute and cannot be waived), and without affecting or impairing its liability
hereunder, from time to time to (a) renew, compromise, extend, increase,
accelerate or otherwise change the time for payment of, or otherwise change the
terms of the Credit Party Obligations or any part thereof in accordance with
this Credit Agreement, including any increase or decrease of the rate of
interest thereon, (b) take and hold security from any guarantor or any other
party for the payment of this Guaranty or the Credit Party Obligations and
exchange, enforce waive and release any such security, (c) apply such security
and direct the order or manner of sale thereof as the Administrative Agent and
the Lenders in their discretion may determine and (d) release or substitute any
one or more endorsers, guarantors, the Borrower or other obligors.
10.6 RELIANCE.
It is not necessary for the Administrative Agent or the Lenders to
inquire into the capacity or powers of the Borrower or the officers, directors,
members, partners or agents acting or purporting to act on its behalf, and any
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
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10.7 WAIVER.
(a) Each of the Guarantors waives any right (except as shall be
required by applicable statute and cannot be waived) to require the
Administrative Agent or any Lender to (i) proceed against the Borrower, any
other guarantor or any other party, (ii) proceed against or exhaust any security
held from the Borrower, any other guarantor or any other party, or (iii) pursue
any other remedy in the Administrative Agent's or any Lender's power whatsoever.
Each of the Guarantors waives any defense based on or arising out of any defense
of the Borrower, any other guarantor or any other party other than payment in
full of the Credit Party Obligations, including without limitation any defense
based on or arising out of the disability of the Borrower, any other guarantor
or any other party, or the unenforceability of the Credit Party Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower other than payment in full of the Credit Party
Obligations. The Administrative Agent or any of the Lenders may, at their
election, foreclose on any security held by the Administrative Agent or a Lender
by one or more judicial or nonjudicial sales, whether or not every aspect of any
such sale is commercially reasonable (to the extent such sale is permitted by
applicable law), or exercise any other right or remedy the Administrative Agent
and any Lender may have against the Borrower or any other party, or any
security, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Credit Party Obligations have been
paid in full. Each of the Guarantors waives any defense arising out of any such
election by the Administrative Agent and each of the Lenders, even though such
election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of the Guarantors against the Borrower or
any other party or any security.
(b) Each of the Guarantors waives all presentments, demands for
performance, protests and notices, including without limitation notices of
nonperformance, notice of protest, notices of dishonor, notices of acceptance of
this Guaranty, and notices of the existence, creation or incurring of new or
additional Credit Party Obligations. Each Guarantor assumes all responsibility
for being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Credit Party Obligations and the nature, scope and extent of the risks which
such Guarantor assumes and incurs hereunder, and agrees that neither the
Administrative Agent nor any Lender shall have any duty to advise such Guarantor
of information known to it regarding such circumstances or risks.
(c) Each of the Guarantors hereby agrees it will not exercise any
rights of subrogation which it may at any time otherwise have as a result of
this Guaranty (whether contractual, under Section 509 of the U.S. Bankruptcy
Code, or otherwise) to the claims of the Lenders against the Borrower or any
other guarantor of the Credit Party Obligations of the Borrower owing to the
Lenders (collectively, the "OTHER PARTIES") and all contractual, statutory or
common law rights of reimbursement, contribution or indemnity from any Other
Party which it may at any time otherwise have as a result of this Guaranty until
such time as the Credit Party Obligations shall have been paid in full and the
Commitments have been terminated. Each of the Guarantors hereby further agrees
not to exercise any right to enforce any other remedy which the Administrative
Agent and the Lenders now have or may hereafter have against any Other Party,
any endorser or any other guarantor of all or any part of the Credit Party
Obligations of the Borrower and any benefit of, and any right to participate in,
any security or collateral given to or
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for the benefit of the Lenders to secure payment of the Credit Party Obligations
of the Borrower until such time as the Credit Party Obligations shall have been
paid in full and the Commitments have been terminated.
10.8 LIMITATION ON ENFORCEMENT.
The Lenders agree that this Guaranty may be enforced only by the action
of the Administrative Agent acting upon the instructions of the Required Lenders
and that no Lender shall have any right individually to seek to enforce or to
enforce this Guaranty, it being understood and agreed that such rights and
remedies may be exercised by the Administrative Agent for the benefit of the
Lenders under the terms of this Credit Agreement. The Lenders further agree that
this Guaranty may not be enforced against any director, officer, employee or
stockholder of the Guarantors.
10.9 CONFIRMATION OF PAYMENT.
The Administrative Agent and the Lenders will, upon request after
payment of the Credit Party Obligations which are the subject of this Guaranty
and termination of the Commitments relating thereto, confirm to the Borrower,
the Guarantors or any other Person that the Credit Party Obligations have been
paid in full and the Commitments relating thereto terminated, subject to the
provisions of Section 10.2.
SECTION 11
MISCELLANEOUS
11.1 AMENDMENTS AND WAIVERS.
Neither this Credit Agreement, nor any of the other Credit Documents,
nor any terms hereof or thereof may be amended, supplemented, waived or modified
except in accordance with the provisions of this Section. The Required Lenders
may, or, with the written consent of the Required Lenders, the Administrative
Agent may, from time to time, (a) enter into with the Borrower written
amendments, supplements or modifications hereto and to the other Credit
Documents for the purpose of adding any provisions to this Credit Agreement or
the other Credit Documents or changing in any manner the rights of the Lenders
or of the Borrower hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders may specify in such instrument, any of the
requirements of this Credit Agreement or the other Credit Documents or any
Default or Event of Default and its consequences; PROVIDED, HOWEVER, that no
such waiver and no such amendment, waiver, supplement, modification or release
shall:
(i) reduce the amount or extend the scheduled date of maturity
of any Loan or Note, or reduce the stated rate of any interest or fee
payable hereunder (except in connection with a waiver of interest at
the increased post-default rate) or extend the scheduled date of any
payment thereof or increase the amount or extend the expiration date of
any Lender's Commitment, in each case without the written consent of
each Lender directly affected thereby; or
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(ii) amend, modify or waive any provision of this Section 11.1
or reduce the percentage specified in the definition of Required
Lenders, without the written consent of all the Lenders; or
(iii) amend, modify or waive any provision of Section 9
without the written consent of the then Administrative Agent; or
(iv) release any of the Guarantors from their obligations
under the Guaranty (excluding for purposes hereof the release of a
Guarantor by a sale, transfer, disposition or otherwise to the extent
permitted pursuant to the terms of Section 7.4), without the written
consent of all of the Lenders; or
(v) amend, modify or waive the Lender approval requirements
of any provision of the Credit Documents which at such time requires
the consent, approval or request of the Required Lenders or all
Lenders, as the case may be, without the written consent of the
Required Lenders or of all of the Lenders, as the case may be;
PROVIDED, FURTHER, that no amendment, waiver or consent affecting the rights or
duties of the Administrative Agent under any Credit Document shall in any event
be effective, unless in writing and signed by the Administrative Agent in
addition to the Lenders required hereinabove to take such action.
Any such waiver, any such amendment, supplement or modification and any
such release shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the other Credit Parties, the Lenders, the Administrative
Agent and all future holders of the Notes. In the case of any waiver, the
Borrower, the other Credit Parties, the Lenders and the Administrative Agent
shall be restored to their former position and rights hereunder and under the
outstanding Loans and Notes and other Credit Documents, and any Default or Event
of Default permanently waived shall be deemed to be cured and not continuing;
but no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
Notwithstanding any of the foregoing to the contrary, the consent of
the Borrower shall not be required for any amendment, modification or waiver of
the provisions of Section 9 (other than the provisions of Section 9.9);
PROVIDED, HOWEVER, that the Administrative Agent will provide written notice to
the Borrower of any such amendment, modification or waiver. In addition, the
Borrower and the Lenders hereby authorize the Administrative Agent to modify
this Credit Agreement by unilaterally amending or supplementing SCHEDULE 2.1(a)
from time to time in the manner requested by the Borrower, the Administrative
Agent or any Lender in order to reflect any assignments or transfers of the
Loans as provided for hereunder; PROVIDED FURTHER, HOWEVER, that the
Administrative Agent shall promptly deliver a copy of any such modification to
the Borrower and each Lender.
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (x) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, and each Lender acknowledges that the
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provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous
consent provisions set forth herein and (y) the Required Lenders may consent to
allow a Credit Party to use cash collateral in the context of a bankruptcy or
insolvency proceeding.
11.2 NOTICES.
All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy), and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made (a) when delivered by hand, (b) when transmitted via telecopy (or other
facsimile device) to the number set out herein, (c) the day following the day on
which the same has been delivered prepaid (or pursuant to an invoice
arrangement) to a reputable national overnight air courier service, or (d) the
third Business Day following the day on which the same is sent by certified or
registered mail, postage prepaid, in each case addressed as follows in the case
of the Borrower, the other Credit Parties and the Administrative Agent, and as
set forth on SCHEDULE 11.2 in the case of the Lenders, or to such other address
as may be hereafter notified by the respective parties hereto and any future
holders of the Notes:
if to the Borrower or any other Credit Party:
Dycom Industries, Inc.
Richard L. Dunn
4440 PGA Boulevard
Suite 500
Palm Beach Gardens, FL 33410
Attn: Richard L. Dunn
Telephone: 561-627-7171
Telecopy: 561-627-0628
with a copy to:
Shearman & Sterling
Lexington Avenue
New York, NY 10022
Attn: Maura O'Sullivan
Telephone: (212) 848-7897
Telecopy: (646) 848-7897
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if to the Administrative Agent:
Wachovia Bank, National Association
Charlotte Plaza
201 South College Street, CP-8
Charlotte, North Carolina 28288-0680
Attn: Syndication Agency Services
Telephone: 704-374-2698
Telecopy: 704-383-0288
with a copy to:
Wachovia Bank, National Association
301 South College Street, DC-5
Mail Code: NC-0760
Charlotte, North Carolina 28288-0760
Attn: Mr. Douglas Nickel
Telephone: 704-383-4003
Telecopy: 704-383-7611
11.3 NO WAIVER; CUMULATIVE REMEDIES.
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Credit Agreement and the Notes
and the making of the Loans; PROVIDED that all such representations and
warranties shall terminate on the date upon which the Commitments have been
terminated and all Credit Party Obligations have been paid in full.
11.5 PAYMENT OF EXPENSES AND TAXES.
The Credit Parties jointly and severally agree (a) to pay or reimburse
the Administrative Agent and the Lead Arranger for all their reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation, negotiation, printing and execution of, and any amendment,
supplement or modification to, this Credit Agreement and the other Credit
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, together with the reasonable fees and disbursements of counsel to
the Administrative Agent and the Lead
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Arranger, (b) to pay or reimburse each Lender and the Administrative Agent for
all its costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Credit Agreement and the other Credit
Documents, including, without limitation, the reasonable fees and disbursements
of counsel to the Administrative Agent and to the Lenders, and (c) on demand, to
pay, indemnify, and hold each Lender and the Administrative Agent harmless from,
any and all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying, stamp, excise and other similar
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, the Credit Documents and
any such other documents, and (d) to pay, indemnify, and hold each Lender and
the Administrative Agent and their Affiliates harmless from and against, any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of the Credit Documents and any such other documents and the use,
or proposed use, of proceeds of the Loans (all of the foregoing, collectively,
the "INDEMNIFIED LIABILITIES"); PROVIDED, HOWEVER, that the Borrower shall not
have any obligation hereunder to the Administrative Agent or any Lender with
respect to indemnified liabilities arising from the gross negligence or willful
misconduct of the Administrative Agent or any such Lender, as determined by a
court of competent jurisdiction pursuant to a final non-appealable judgment. The
agreements in this Section 11.5 shall survive repayment of the Loans, Notes and
all other Credit Party Obligations.
11.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; PURCHASING LENDERS.
(a) This Credit Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Administrative Agent, all future
holders of the Notes and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or obligations under
this Credit Agreement or the other Credit Documents without the prior written
consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("PARTICIPANTS") participating interests in any Loan
owing to such Lender, any Note held by such Lender, any Commitment of such
Lender, and/or any other interest of such Lender hereunder. In the event of any
such sale by a Lender of participating interests to a Participant, such Lender's
obligations under this Credit Agreement to the other parties to this Credit
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Note for all purposes under this Credit Agreement, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Credit
Agreement. No Lender shall transfer or grant any participation under which the
Participant shall have rights to approve any amendment to or waiver of this
Credit Agreement or any other Credit Document except to the extent such
amendment or waiver would (i) extend the scheduled maturity of any Loan or Note
in which such Participant is participating, or reduce the stated rate or extend
the time of payment of interest or fees thereon (except in connection with a
waiver of
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interest at the increased post-default rate) or reduce the principal amount
thereof, or increase the amount of the Participant's participation over the
amount thereof then in effect (it being understood that a waiver of any Default
or Event of Default shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be permitted
without consent of any Participant if the Participant's participation is not
increased as a result thereof), (ii) release any of the Guarantors from its
obligations under the Guaranty, or (iii) consent to the assignment or transfer
by the Borrower of any of its rights and obligations under this Credit
Agreement. In the case of any such participation, the Participant shall not have
any rights under this Credit Agreement or any of the other Credit Documents (the
Participant's rights against such Lender in respect of such participation to be
those set forth in the agreement executed by such Lender in favor of the
Participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Lender had not sold such participation; PROVIDED
that each Participant shall be entitled to the benefits of Sections 3.10, 3.11,
3.12 and 11.5 with respect to its participation in the Commitments and the Loans
outstanding from time to time; PROVIDED FURTHER, that no Participant shall be
entitled to receive any greater amount pursuant to such Sections than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time, sell or assign to
any Lender or any Affiliate or Related Fund thereof and, with the consent of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower (in each case, which consent shall not be unreasonably
withheld or delayed), to one or more additional banks or financial institutions
or entities ("PURCHASING LENDERS"), all or any part of its rights and
obligations under this Credit Agreement and the Notes in minimum amounts of
$5,000,000 with respect to its Commitment and Loans (or, if less, the entire
amount of such Lender's obligations), pursuant to a Commitment Transfer
Supplement, executed by such Purchasing Lender and such transferor Lender (and,
to the extent required above, the Administrative Agent and the Borrower), and
delivered to the Administrative Agent for its acceptance and recording in the
Register; PROVIDED that, except in the case of an assignment of the entire
remaining amount of the transferor Lender's Commitment and the Loans at the time
owing to it, the principal outstanding balance of the Loans of the transferor
Lender subsequent to the effectiveness of the Commitment Transfer Supplement
shall not be less than $5,000,000, unless each of the Administrative Agent and,
so long as no Event of Default has occurred and is continuing, the Borrower
otherwise consent (each such consent not to be unreasonably withheld or
delayed). Upon such execution, delivery, acceptance and recording, from and
after the Transfer Effective Date specified in such Commitment Transfer
Supplement, (x) the Purchasing Lender thereunder shall be a party hereto and, to
the extent provided in such Commitment Transfer Supplement, have the rights and
obligations of a Lender hereunder with a Commitment as set forth therein, and
(y) the transferor Lender thereunder shall, to the extent provided in such
Commitment Transfer Supplement, be released from its obligations under this
Credit Agreement (and, in the case of a Commitment Transfer Supplement covering
all or the remaining portion of a transferor Lender's rights and obligations
under this Credit Agreement, such transferor Lender shall cease to be a party
hereto; PROVIDED, HOWEVER, that such Lender shall still be entitled to any
indemnification rights hereunder). Such Commitment Transfer Supplement shall be
deemed to amend this Credit
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Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Lender and the resulting adjustment of Commitment
Percentages arising from the purchase by such Purchasing Lender of all or a
portion of the rights and obligations of such transferor Lender under this
Credit Agreement and the Notes. On or prior to the Transfer Effective Date
specified in such Commitment Transfer Supplement, the Borrower shall execute and
deliver to the Administrative Agent in exchange for the Notes delivered to the
Administrative Agent pursuant to such Commitment Transfer Supplement new Notes
to the order of such Purchasing Lender in an amount equal to the Commitment
assumed by it pursuant to such Commitment Transfer Supplement and, unless the
transferor Lender has not retained a Commitment hereunder, new Notes to the
order of the transferor Lender in an amount equal to the Commitment retained by
it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise
be in the form of the Notes replaced thereby. The Notes surrendered by the
transferor Lender shall be returned by the Administrative Agent to the Borrower
marked "canceled".
(d) The Administrative Agent shall maintain at its address referred to
in Section 11.2 a copy of each Commitment Transfer Supplement delivered to it
and a register (the "REGISTER") for the recordation of the names and addresses
of the Lenders and the Commitment of, and principal amount of the Loans owing
to, each Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded therein for all
purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of a duly executed Commitment Transfer Supplement,
together with payment to the Administrative Agent by the transferor Lender or
the Purchasing Lender, as agreed between them, of a registration and processing
fee of $3,500 for each Purchasing Lender listed in such Commitment Transfer
Supplement and the Notes subject to such Commitment Transfer Supplement, the
Administrative Agent shall (i) accept such Commitment Transfer Supplement, (ii)
record the information contained therein in the Register and (iii) give prompt
notice of such acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any Participant
or Purchasing Lender (each, a "TRANSFEREE") and any prospective Transferee any
and all financial information in such Lender's possession concerning the
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of the Borrower pursuant to this Credit Agreement or which has been
delivered to such Lender by or on behalf of the Borrower in connection with such
Lender's credit evaluation of the Borrower and its Subsidiaries prior to
becoming a party to this Credit Agreement, in each case subject to Section
11.16.
(g) At the time of each assignment pursuant to this Section 11.6 to a
Person which is not already a Lender hereunder and which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for United
States federal income tax purposes, the respective assignee Lender shall provide
to the Borrower and the Administrative Agent the appropriate Internal Revenue
Service Forms (and, if applicable, a 3.13 Certificate) described in Section
3.13.
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(h) Nothing herein shall prohibit any Lender from pledging or assigning
any of its rights under this Credit Agreement (including, without limitation,
any right to payment of principal and interest under any Note) to any Federal
Reserve Bank in accordance with applicable laws.
11.7 ADJUSTMENTS; SET-OFF.
(a) Each Lender agrees that if any Lender (a "BENEFITED LENDER") shall
at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8.1(e), or otherwise) in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans, or interest thereon, such benefited Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefited Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders; PROVIDED,
HOWEVER, that if all or any portion of such excess payment or benefits is
thereafter recovered from such benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrower agrees that each Lender so
purchasing a portion of another Lender's Loans may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to such
portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by
law (including, without limitation, other rights of set-off), each Lender shall
have the right, without prior notice to any Credit Party, any such notice being
expressly waived by the Credit Parties to the extent permitted by applicable
law, upon the occurrence of any Event of Default, to setoff and appropriate and
apply any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of any Credit Party, or any
part thereof in such amounts as such Lender may elect, against and on account of
the obligations and liabilities of the Borrower and the other Credit Parties to
such Lender hereunder and claims of every nature and description of such Lender
against the Borrower and the other Credit Parties, in any currency, whether
arising hereunder, under the Notes or under any documents contemplated by or
referred to herein or therein, as such Lender may elect, whether or not such
Lender has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The aforesaid right of
set-off may be exercised by such Lender against any Credit Party or against any
trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver or execution, judgment or attachment creditor of any such
Credit Party, or against anyone else claiming through or against any such Credit
Party or any such trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the
72
occurrence of any Event of Default. Each Lender agrees promptly to notify the
applicable Credit Party and the Administrative Agent after any such set-off and
application made by such Lender; PROVIDED, HOWEVER, that the failure to give
such notice shall not affect the validity of such set-off and application.
11.8 TABLE OF CONTENTS AND SECTION HEADINGS.
The table of contents and the Section and subsection headings herein
are intended for convenience only and shall be ignored in construing this Credit
Agreement.
11.9 COUNTERPARTS.
This Credit Agreement may be executed by one or more of the parties to
this Credit Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
agreement.
11.10 EFFECTIVENESS.
This Credit Agreement shall become effective on the date on which all
of the parties have signed a copy hereof (whether the same or different copies)
and shall have delivered the same to the Administrative Agent (or counsel to the
Administrative Agent) or, in the case of the Lenders, shall have given to the
Administrative Agent written, telecopied or telex notice (actually received) at
such office that the same has been signed and mailed to it.
11.11 SEVERABILITY.
Any provision of this Credit Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11.12 INTEGRATION.
This Credit Agreement and the other Credit Documents represent the
agreement of the Borrower, the Administrative Agent and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent, the Borrower or any
Lender relative to the subject matter hereof not expressly set forth or referred
to herein or in the other Credit Documents.
11.13 GOVERNING LAW.
THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
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11.14 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
All judicial proceedings brought against the Borrower and/or any other
Credit Party with respect to this Credit Agreement, any Note or any of the other
Credit Documents may be brought in any New York State or Federal court of the
United States of America of competent jurisdiction sitting in the State of New
York, and, by execution and delivery of this Credit Agreement, each of the
Borrower and the other Credit Parties accepts, for itself and in connection with
its properties, generally and unconditionally, the non-exclusive jurisdiction of
the aforesaid courts and irrevocably agrees to be bound by any final judgment
rendered thereby in connection with this Credit Agreement, any Note or any other
Credit Document from which no appeal has been taken or is available. Each of the
Borrower and the other Credit Parties irrevocably agrees that all service of
process in any such proceedings in any such court may be effected by mailing a
copy thereof by registered or certified mail (or any substantially similar form
of mail), postage prepaid, to it at its address set forth in Section 11.2 or at
such other address of which the Administrative Agent shall have been notified
pursuant thereto, such service being hereby acknowledged by the each of the
Borrower and the other Credit Parties to be effective and binding service in
every respect. Each of the Borrower, the other Credit Parties, the
Administrative Agent and the Lenders irrevocably waives any objection,
including, without limitation, any objection to the laying of venue based on the
grounds of forum non conveniens which it may now or hereafter have to the
bringing of any such action or proceeding in any such jurisdiction. Nothing
herein shall affect any right that any party hereto may have to serve process in
any other manner permitted by law or shall limit the right of any Lender to
bring proceedings against the Borrower or the other Credit Parties in the court
of any other jurisdiction.
11.15 [INTENTIONALLY DELETED].
11.16 CONFIDENTIALITY.
The Administrative Agent and each of the Lenders agrees that it will
use its best efforts not to disclose without the prior consent of the Borrower
(other than to its employees, affiliates, auditors or counsel or to another
Lender) any information with respect to the Borrower and its Subsidiaries which
is furnished pursuant to this Credit Agreement, any other Credit Document or any
documents contemplated by or referred to herein or therein and which is
designated by the Borrower to the Lenders in writing as confidential or as to
which it is otherwise reasonably clear such information is not public, except
that any Lender may disclose any such information (a) as was or has become
available to such Lender other than by a breach of this Section 11.16, or as has
become generally available to the public other than by a breach of this Section
11.16, (b) as may be required or appropriate in any report, statement or
testimony submitted to any municipal, state or federal regulatory body having or
claiming to have jurisdiction over such Lender or to the Federal Reserve Board
or the Federal Deposit Insurance Corporation or the OCC or the NAIC or similar
organizations (whether in the United States or elsewhere) or their successors,
(c) as may be required or appropriate in response to any summons or subpoena or
similar legal process or any law, order, regulation or ruling applicable to such
Lender, (d) to any prospective
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Participant or assignee in connection with any contemplated transfer pursuant to
Section 11.6; PROVIDED that such prospective transferee shall have been made
aware of this Section 11.16 or (e) to GOLD SHEETS and other similar bank trade
publications, such information to consist of deal terms and other information
regarding the credit facilities evidenced by this Credit Agreement customarily
found in such publications.
11.17 ACKNOWLEDGMENTS.
The Borrower and the other Credit Parties each hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of each Credit Document;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower or any other Credit Party arising out
of or in connection with this Credit Agreement and the relationship between
Administrative Agent and Lenders, on one hand, and the Borrower and the other
Credit Parties, on the other hand, in connection herewith is solely that of
debtor and creditor; and
(c) no joint venture exists among the Borrower or the other Credit
Parties and the Lenders.
11.18 WAIVERS OF JURY TRIAL.
THE BORROWER, THE OTHER CREDIT PARTIES, THE ADMINISTRATIVE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
[Remainder of Page Intentionally Left Blank]
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CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: DYCOM INDUSTRIES, INC.,
- --------
a Florida corporation
By: /s/ Timothy R. Estes
----------------------------------------
Name: Timothy R. Estes
Title: Executive Vice President and Chief
Operating Officer
GUARANTORS: COMMUNICATIONS CONSTRUCTION
- ---------- GROUP, INC., a Pennsylvania corporation
By: /s/ Timothy R. Estes
----------------------------------------
Name: Timothy R. Estes
Title: Vice President
ANSCO & ASSOCIATES, INC.,
a Florida corporation
By: /s/ Timothy R. Estes
----------------------------------------
Name: Timothy R. Estes
Title: Vice President
ERVIN CABLE CONSTRUCTION, INC.,
a Kentucky corporation
By: /s/ Timothy R. Estes
----------------------------------------
Name: Timothy R. Estes
Title: Vice President
CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
GUARANTORS CONT.: CABLE COM INC.,
a Delaware corporation
By: /s/ Timothy R. Estes
----------------------------------------
Name: TIMOTHY R. ESTES
Title: VICE PRESIDENT
NIELS FUGAL SONS COMPANY,
a Utah corporation
By: /s/ Timothy R. Estes
----------------------------------------
Name: Timothy R. Estes
Title: Vice President
CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION,
- ------- individually in its capacity as a Lender
and in its capacity as Administrative Agent
By: /s/ Douglas A. Nickel
----------------------------------------
Name: Douglas A. Nickel
Title: Vice President
CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
BANK HAPOALIM B.M.
By: /s/ Marc Boss /s/ Lewrey Hackett
----------------------------------------
Name: Marc Boss Lewrey Hackett
Title: Vice President Vice President
CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
HARRIS TRUST AND SAVINGS BANK
By: /s/ William R. Veal
----------------------------------------
Name: William R. Veal
Title: Vice President
CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
SUNTRUST BANK
By: /s/ Karen C. Copeland
----------------------------------------
Name: Karen C. Copeland
Title: Vice President
CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
COMMERCEBANK N.A.
By: /s/ Edward P. Tietjen
----------------------------------------
Name: Edward P. Tietjen
Title: Senior Vice President
CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
COMPASS BANK
By: /s/ Louis Costanza
----------------------------------------
Name: Louis Costanza
Title: Vice President
CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
HSBC BANK USA
By: /s/ Gregory Roll
----------------------------------------
Name: Gregory Roll
Title: First Vice President
CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ John C. Thurston
----------------------------------------
Name: John C. Thurston
Title: First Vice President
CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
BANK OF AMERICA, N.A.
By: /s/ Timothy H. Spanos
----------------------------------------
Name: Timothy H. Spanos
Title: Managing Director
CREDIT AGREEMENT
DYCOM INDUSTRIES, INC.
REGIONS BANK
By: /s/ David L. Waller
----------------------------------------
Name: David L. Waller
Title: Vice President