Exhibit 10.65
EXECUTION COPY
CREDIT AGREEMENT
Dated as of August 15, 2002
among
TRACTOR SUPPLY COMPANY,
as Borrower,
AND
CERTAIN SUBSIDIARIES OF THE BORROWER
FROM TIME TO TIME PARTY HERETO,
as Guarantors,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO
AND
BANK OF AMERICA, N. A.,
as Administrative Agent
BANC OF AMERICA SECURITIES LLC,
as Lead Arranger and Book Manager
TABLE OF CONTENTS
SECTION 1 DEFINITIONS.....................................................................1
1.1 Definitions..............................................................1
1.2 Computation of Time Periods.............................................23
1.3 Accounting Terms........................................................23
SECTION 2 CREDIT FACILITIES..............................................................24
2.1 Revolving Loans.........................................................24
2.2 Letter of Credit Subfacility............................................26
2.3 Swingline Loans Subfacility.............................................33
2.4 Extension Option........................................................34
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES.................................36
3.1 Default Rate............................................................36
3.2 Extension and Conversion................................................36
3.3 Prepayments.............................................................37
3.4 Termination and Reduction of Revolving Committed Amount.................38
3.5 Fees....................................................................39
3.6 Capital Adequacy........................................................40
3.7 Limitation on Eurodollar Loans..........................................40
3.8 Illegality..............................................................41
3.9 Requirements of Law.....................................................41
3.10 Treatment of Affected Loans.............................................42
3.11 Taxes...................................................................43
3.12 Compensation............................................................45
3.13 Pro Rata Treatment......................................................45
3.14 Sharing of Payments.....................................................46
3.15 Payments, Computations, Etc.............................................47
3.16 Evidence of Debt........................................................49
SECTION 4 GUARANTY.......................................................................50
4.1 The Guaranty............................................................50
4.2 Obligations Unconditional...............................................50
4.3 Reinstatement...........................................................51
4.4 Certain Additional Waivers..............................................52
4.5 Remedies................................................................52
4.6 Rights of Contribution..................................................52
4.7 Guarantee of Payment; Continuing Guarantee..............................53
SECTION 5 CONDITIONS.....................................................................53
5.1 Closing Conditions......................................................53
5.2 Conditions to all Extensions of Credit..................................55
SECTION 6 REPRESENTATIONS AND WARRANTIES.................................................56
6.1 Financial Condition.....................................................56
6.2 No Material Change......................................................57
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6.3 Organization and Good Standing; Compliance with Law.....................57
6.4 Power; Authorization; Enforceable Obligations...........................57
6.5 No Conflicts............................................................57
6.6 Ownership...............................................................58
6.7 Indebtedness............................................................58
6.8 Litigation..............................................................58
6.9 Taxes...................................................................58
6.10 Compliance with Law.....................................................58
6.11 ERISA...................................................................58
6.12 Subsidiaries............................................................60
6.13 Governmental Regulations, Etc...........................................60
6.14 Purpose of Loans and Letters of Credit..................................61
6.15 Environmental Matters...................................................61
6.16 Intellectual Property...................................................62
6.17 Solvency................................................................63
6.18 Investments.............................................................63
6.19 Location of Assets......................................................63
6.20 Disclosure..............................................................63
6.21 No Burdensome Restrictions..............................................63
6.22 Brokers' Fees...........................................................63
6.23 Labor Matters...........................................................63
SECTION 7 AFFIRMATIVE COVENANTS..........................................................64
7.1 Financial Statements....................................................64
7.2 Preservation of Existence and Franchises................................66
7.3 Books and Records.......................................................66
7.4 Compliance with Law.....................................................67
7.5 Payment of Taxes and Other Indebtedness.................................67
7.6 Insurance...............................................................67
7.7 Maintenance of Property.................................................67
7.8 Performance of Obligations..............................................67
7.9 Use of Proceeds.........................................................68
7.10 Audits/Inspections......................................................68
7.11 Financial Covenants.....................................................68
7.12 Additional Credit Parties...............................................69
7.13 Environmental Laws......................................................69
SECTION 8 NEGATIVE COVENANTS.............................................................70
8.1 Indebtedness............................................................70
8.2 Liens...................................................................71
8.3 Nature of Business......................................................71
8.4 Consolidation, Merger, Dissolution, etc.................................71
8.5 Asset Dispositions......................................................71
8.6 Investments.............................................................71
8.7 Restricted Payments.....................................................71
8.8 Prepayments of Indebtedness, etc........................................72
8.9 Transactions with Affiliates............................................72
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8.10 Fiscal Year; Organizational Documents...................................72
8.11 Limitation on Restricted Actions........................................72
8.12 Ownership of Subsidiaries...............................................73
8.13 Sale Leasebacks.........................................................73
8.14 No Further Negative Pledges.............................................73
SECTION 9 EVENTS OF DEFAULT..............................................................73
9.1 Events of Default.......................................................73
9.2 Acceleration; Remedies..................................................76
SECTION 10 AGENCY PROVISIONS.............................................................77
10.1 Appointment and Authorization of Administrative Agent...................77
10.2 Delegation of Duties....................................................78
10.3 Liability of Administrative Agent.......................................78
10.4 Reliance by Administrative Agent........................................78
10.5 Notice of Default.......................................................79
10.6 Credit Decision; Disclosure of Information by Administrative Agent......79
10.7 Indemnification of Administrative Agent.................................80
10.8 Administrative Agent in its Individual Capacity.........................80
10.9 Successor Administrative Agent..........................................81
10.10 Administrative Agent May File Proofs of Claim...........................81
10.11 Guaranty Matters........................................................82
10.12 Other Agents; Arrangers and Managers....................................82
SECTION 11 MISCELLANEOUS.................................................................83
11.1 Notices.................................................................83
11.2 Right of Set-Off; Adjustments...........................................84
11.3 Successors and Assigns..................................................84
11.4 No Waiver; Remedies Cumulative..........................................87
11.5 Expenses; Indemnification...............................................87
11.6 Amendments, Waivers and Consents........................................88
11.7 Counterparts............................................................89
11.8 Headings................................................................89
11.9 Survival................................................................90
11.10 Governing Law; Submission to Jurisdiction; Venue........................90
11.11 Severability............................................................91
11.12 Entirety................................................................91
11.13 Binding Effect; Termination.............................................91
11.14 Confidentiality.........................................................92
11.15 Use of Sources..........................................................92
11.16 Conflict................................................................93
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SCHEDULES
Schedule 1.1(a) Existing Letters of Credit
Schedule 1.1(b) Liens
Schedule 2.1(a) Lenders
Schedule 6.12 Subsidiaries
Schedule 6.19 Chief Executive Office/State of Formation
Schedule 6.23 Labor Matters
Schedule 7.6 Insurance
Schedule 8.1 Indebtedness
Schedule 8.9 Transactions with Affiliates
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.1(b)(i) Form of Notice of Borrowing
Exhibit 2.1(e) Form of Revolving Note
Exhibit 2.3(b) Form of Swingline Loan Request
Exhibit 2.3(e) Form of Swingline Note
Exhibit 3.2 Form of Notice of Extension/Conversion
Exhibit 7.1(c) Form of Officer's Compliance Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3 Form of Assignment and Acceptance
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of August 15, 2002 (as amended,
modified, restated or supplemented from time to time, the "Credit Agreement"),
is by and among TRACTOR SUPPLY COMPANY, a Delaware corporation (the "Borrower"),
the Subsidiary Guarantors (as defined herein), the Lenders (as defined herein)
and BANK OF AMERICA, N.A., as Administrative Agent for the Lenders (in such
capacity, the "Administrative Agent").
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide a
$155,000,000 credit facility for the purposes hereinafter set forth; and
WHEREAS, the Lenders have agreed to make the requested credit facility
available to the Borrower on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is 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:
"30-Day Interbank Offered Rate" means, for any Swingline Loan,
the rate per annum (rounded, if necessary, to the nearest one-one
hundredth (1/100) of one percent) appearing each day on Page 3750 (or
any successor page) of the Dow Jones Market Service as the London
interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) for a term of thirty (30) days. If for any reason
such rate is not available, the term "30-Day Interbank Offered Rate"
shall mean the rate per annum (rounded, if necessary, to the nearest
1/100 of 1%) appearing each day on Reuters Screen LIBO Page as the
London interbank offered rate for deposits in Dollars at approximately
11:00 a.m. (London time) for a term of thirty (30) days; 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, if necessary, to the nearest 1/100 of 1%). As to any
date on which no such rates are available, the term "30-Day Interbank
Offered Rate" shall mean such rate as determined on the next proceeding
Business Day when such rate was determinable.
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"Additional Credit Party" means each Person that becomes a
Subsidiary Guarantor after the Closing Date by execution of a Joinder
Agreement.
"Adjusted Base Rate" means the Base Rate plus the Applicable
Percentage.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
Applicable Percentage.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, any other
Person (i) directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person or (ii) directly or
indirectly owning or holding five percent (5%) or more of the Capital
Stock in such Person. For purposes of this definition, "control" when
used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"Administrative Agent" shall have the meaning assigned to such
term in the heading hereof, together with any successors or assigns.
"Agent-Related Persons" means the Administrative Agent,
together with its Affiliates (including, at such times as Bank of
America is the Administrative Agent, the Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Applicable Lending Office" means, for each Lender, the office
of such Lender (or of an Affiliate of such Lender) as such Lender may
from time to time specify to the Administrative Agent and the Borrower
by written notice as the office by which its Eurodollar Loans are made
and maintained.
"Applicable Percentage" means, for purposes of calculating the
applicable interest rate for any day for any Revolving Loan, the
applicable rate for any day for any Swingline Loan, the applicable rate
of the Unused Fee for any day for purposes of Section 3.5(a), the
applicable rate of the Standby Letter of Credit Fee for any day for
purposes of Section 3.5(b)(i) or the applicable rate for the Trade
Letter of Credit Fee for any day for purposes of Section 3.5(b)(ii),
the appropriate applicable percentage corresponding to the Leverage
Ratio in effect as of the most recent Calculation Date:
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============================================================================================================
PRICING LEVERAGE APPLICABLE APPLICABLE APPLICABLE APPLICABLE APPLICABLE
LEVEL RATIO PERCENTAGE FOR PERCENTAGE PERCENTAGE PERCENTAGE PERCENTAGE
EURODOLLAR LOANS FOR FOR FOR TRADE FOR UNUSED
AND BASE RATE STANDBY LETTER OF FEES
SWINGLINE LOANS LOANS LETTER OF CREDIT FEES
CREDIT FEES
- ------------------------------------------------------------------------------------------------------------
I <2.50 0.75 % 0.0% 0.75% 0.25% 0.20%
- ------------------------------------------------------------------------------------------------------------
II > 2.50 but <3.0 0.875% 0.0% 0.875% 0.25% 0.25%
-
- ------------------------------------------------------------------------------------------------------------
III > 3.0 but <3.50 1.00% 0.0% 1.00% 0.25% 0.25%
-
- ------------------------------------------------------------------------------------------------------------
IV > 3.50 but <4.0 1.25% 0.0% 1.25% 0.25% 0.30%
-
- ------------------------------------------------------------------------------------------------------------
V > 4.0 1.50% 0.0% 1.50% 0.25% 0.35%
-
============================================================================================================
The Applicable Percentages shall be determined and adjusted quarterly
on the date (each a "Calculation Date") five Business Days after the
date by which the Borrower is required to provide the officer's
certificate in accordance with the provisions of Section 7.1(c) for the
most recently ended fiscal quarter of the Consolidated Parties;
provided, however, (i) the initial Applicable Percentages shall be
based on Pricing Level III and shall remain at Pricing Level III until
the first Calculation Date to occur subsequent to June 29, 2002 and
(ii) if the Borrower fails to provide the officer's certificate as
required by Section 7.1(c) for the last day of the most recently ended
fiscal quarter of the Consolidated Parties, the Applicable Percentage
from such Calculation Date shall be based on Pricing Level V until such
time as an appropriate officer's certificate is provided, whereupon the
Applicable Percentage shall be determined by the Leverage Ratio as of
the last day of the most recently ended fiscal quarter of the
Consolidated Parties preceding such Calculation Date. Each Applicable
Percentage shall be effective from one Calculation Date until the next
Calculation Date. Any adjustment in the Applicable Percentages shall be
applicable to all existing Loans as well as any new Loans made or
issued.
"Approved Fund" means any Fund that is administered or managed
by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an
Affiliate of an entity that administers or manages a Lender.
"Approving Lenders" shall have the meaning assigned to such
term in Section 2.4(c).
"Arranger" means Banc of America Securities LLC, in its
capacity as sole lead arranger and sole book manager.
"Asset Disposition" means the disposition of any or all of the
assets (including without limitation the Capital Stock of a Subsidiary)
of any Consolidated Party whether by sale, lease, transfer or otherwise
other than any such sale or disposition permitted by Section 8.5(a),
(b), (c) or (d).
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit 11.3.
"Bank of America" means Bank of America, N.A. and its
successors.
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"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Bankruptcy Event" means, with respect to any Person, the
occurrence of any of the following with respect to such Person: (i) a
court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of such Person in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
ordering the winding up or liquidation of its affairs; or (ii) there
shall be commenced against such Person an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or any case, proceeding or other action for the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its
Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded for a period of sixty (60)
consecutive days; or (iii) such Person shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in
an involuntary case under any such law, or consent to the appointment
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or make any general assignment for the
benefit of creditors; or (iv) such Person shall be unable to, or shall
admit in writing its inability to, pay its debts generally as they
become due.
"Base Rate" means for any day a fluctuating rate per annum
equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and
(b) the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its "prime rate." The "prime
rate" is a rate set by Bank of America based upon various factors
including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate. Any change in such rate announced by Bank of America
shall take effect at the opening of business on the day specified in
the public announcement of such change.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" means the Person identified as such in the heading
hereof, together with any permitted successors and assigns.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina or
Nashville, Tennessee are authorized or required by law to close, except
that, when used in connection with a Eurodollar Loan, such day shall
also be a day on which dealings between banks are carried on in U.S.
dollar deposits in London, England.
4
"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 distributions
of assets of, the issuing Person.
"Cash Equivalents" means (a) 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, (b) U.S. dollar denominated time deposits and certificates
of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of
$500,000,000 or (iii) 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 270
days from the date of acquisition, (c) commercial paper and variable or
fixed rate notes issued by any 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, (d) repurchase
agreements entered into by any Person with a bank or trust company
(including any of the Lenders) or 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 in which
such Person shall have a perfected first priority security interest
(subject to no other Liens) and having, on the date of purchase
thereof, a fair market value of at least 100% of the amount of the
repurchase obligations and (e) Investments, classified in accordance
with GAAP as current assets, in money market investment programs
registered under the Investment Company Act of 1940, as amended, which
are administered by reputable financial institutions having capital of
at least $500,000,000 and the portfolios of which are limited to
Investments of the character described in the foregoing subdivisions
(a) through (d).
"Change of Control" means the occurrence of any of the
following events: (i) 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
shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of, control over,
Voting Stock of the Borrower (or other securities convertible into such
Voting Stock) representing 25% or more of the combined voting power of
all Voting Stock of the Borrower, or (ii) during any period of up to 24
consecutive months, commencing after the Closing Date, individuals who
at the beginning of such 24 month
5
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) cease for any
reason to constitute a majority of the 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 the Revolving Commitment, the Swingline
Commitment and the LOC Commitment.
"Consolidated Capital Expenditures" means, for any period, all
capital expenditures of the Consolidated Parties on a consolidated
basis for such period, as determined in accordance with GAAP.
"Consolidated Cash Taxes" means, for any period, the aggregate
of all federal, state, local and foreign income, franchise,
withholding, value added and similar taxes of the Consolidated Parties
on a consolidated basis for such period, as determined in accordance
with GAAP, to the extent the same are paid in cash during such period.
"Consolidated EBITDA" means, for any period, the sum of (a)
Consolidated Net Income for such period, plus (b) an amount which, in
the determination of Consolidated Net Income for such period, has been
deducted for (i) Consolidated Interest Expense, (ii) total federal,
state, local and foreign income, value added and similar taxes and
(iii) depreciation and amortization expense, all as determined in
accordance with GAAP.
"Consolidated EBITDAR" means, for any period, the sum of (a)
Consolidated EBITDA for such period, plus (b) Consolidated Rental
Expense for such period.
"Consolidated Interest Expense" means, for any period, all
interest expense (including the interest component under Capital Leases
and Synthetic Leases) of the Consolidated Parties on a consolidated
basis for such period, as determined in accordance with GAAP. For
purposes of clarification, the implied interest component under
Synthetic Leases shall be considered interest expense for purposes of
this definition.
"Consolidated Parties" means a collective reference to the
Borrower and its Subsidiaries, and "Consolidated Party" means any one
of them.
6
"Consolidated Net Income" means, for any period, net income
(excluding extraordinary gains and other non-recurring gains) after
taxes for such period of the Consolidated Parties on a consolidated
basis, as determined in accordance with GAAP.
"Consolidated Rental Expense" means, for any period, rental
expense under Operating Leases (excluding any Synthetic Lease) of the
Consolidated Parties on a consolidated basis for such period, as
determined in accordance with GAAP.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the LOC Documents, each Joinder Agreement, the
Administrative Agent's Fee Letter and all other related agreements and
documents issued or delivered hereunder or thereunder or pursuant
hereto or thereto (in each case as the same may be amended, modified,
restated, supplemented, extended, renewed or replaced from time to
time), and "Credit Document" means any one of them.
"Credit Parties" means a collective reference to the Borrower
and the Guarantors, and "Credit Party" means any one of them.
"Credit Party Obligations" means, without duplication, (i) all
of the obligations of the Credit Parties to the Lenders (including the
Issuing Lender and the Swingline Lender) 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 Bankruptcy Event 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 the Borrower to any Lender, or any
Affiliate of a Lender, arising under any Hedging Agreement relating to
the Revolving Obligations hereunder.
"Current Assets" means, as of any date, the total amount of
current assets of the Consolidated Parties on a consolidated basis, as
determined in accordance with GAAP.
"Current Liabilities" means, as of any date, the total amount
of current liabilities of the Consolidated Parties on a consolidated
basis, as determined in accordance with GAAP.
"Current Ratio" means, at any time, the ratio of (a) Current
Assets to (b) the sum of (i) Current Liabilities plus (ii) the
aggregate principal amount of the Revolving Obligations outstanding.
"Debt Issuance" means the issuance of any Indebtedness for
borrowed money by any Consolidated Party other than Indebtedness
permitted by Section 8.1(a), (b), (c), (d) or (e).
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
7
"Defaulting Lender" means, at any time, any Lender that (a)
has failed to make a Loan or purchase a Participation Interest required
pursuant to the term of this Credit Agreement within one Business Day
of when due, (b) other than as set forth in (a) above, has failed to
pay to the Administrative Agent or any Lender an amount owed by such
Lender pursuant to the terms of this Credit Agreement within one
Business Day of when due, unless such amount is subject to a good faith
dispute or (c) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or with respect to which (or with
respect to any of assets of which) a receiver, trustee or similar
official has been appointed.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Domestic Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is incorporated or organized under the
laws of any State of the United States or the District of Columbia.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) an Approved Fund; and (iv) any other Person (other than a
natural person) approved by the Administrative Agent, the Issuing
Lender and the Swingline Lender and, unless an Event of Default has
occurred and is continuing at the time any assignment is effected in
accordance with Section 11.3, the Borrower (such approval not to be
unreasonably withheld or delayed by the Borrower and such approval to
be deemed given by the Borrower if no objection is received by the
assigning Lender and the Administrative Agent from the Borrower within
two Business Days after notice of such proposed assignment has been
provided by the assigning Lender to the Borrower); provided, however,
that neither the Borrower nor an Affiliate or Subsidiary of the
Borrower shall qualify as an Eligible Assignee.
"Environmental Laws" means any and all lawful and applicable
Federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals,
or industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes.
"Equity Issuance" means any issuance by any Consolidated Party
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
8
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.
"ERISA Affiliate" means an entity which is under common
control with any Consolidated Party within the meaning of Section
4001(a)(14) of ERISA, or is a member of a group which includes any
Consolidated Party and which is treated as a single employer under
Sections 414(b) or (c) of the Code.
"ERISA Event" means (i) with respect to any Plan, the
occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (ii) the
withdrawal by any Consolidated Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or
the termination of a Multiple Employer Plan; (iii) the distribution of
a notice of intent to terminate or the actual termination of a Plan
pursuant to Section 4041(a)(2) or 4041A of ERISA; (iv) the institution
of proceedings to terminate or the actual termination of a Plan by the
PBGC under Section 4042 of ERISA; (v) any event or condition which
might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
Plan; (vi) the complete or partial withdrawal of any Consolidated Party
or any ERISA Affiliate from a Multiemployer Plan; (vii) the conditions
for imposition of a lien under Section 302(f) of ERISA exist with
respect to any Plan; or (viii) the adoption of an amendment to any Plan
requiring the provision of security to such Plan pursuant to Section
307 of ERISA.
"Eurodollar Loan" means any Loan that bears interest at a rate
based upon the Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect
to any Eurodollar Loan, a rate per annum determined by the
Administrative Agent pursuant to the following formula:
Eurodollar Rate = Eurodollar Base Rate
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
9
(b) if the rate referenced in the preceding clause (a) does
not appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and
(b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest at which deposits in
Dollars for delivery on the first day of such Interest Period in same
day funds in the approximate amount of the Eurodollar Loan being made,
continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London
Branch to major banks in the London interbank eurodollar market at
their request at approximately 4:00 p.m. (London time) two Business
Days prior to the first day of such Interest Period.
"Eurodollar Reserve Percentage" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal,
carried out to five decimal places) in effect on such day, whether or
not applicable to any Lender, under regulations issued from time to
time by the FRB for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred
to as "Eurocurrency liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" shall have the meaning as defined in
Section 9.1.
"Existing Letters of Credit" means the letters of credit
described by letter of credit number, undrawn amount, name of
beneficiary and date of expiry on Schedule 1.1(a) attached hereto.
"Fees" means all fees payable pursuant to Section 3.5.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve Bank 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 as so
published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds
Rate for such day shall be the average rate charged to the
Administrative Agent (in its individual capacity) on such day on such
transactions as determined by the Administrative Agent.
10
"First Extension Date" shall have the meaning assigned to such
term in Section 2.4(a).
"Fixed Charge Coverage Ratio" means, with respect to the
Consolidated Parties on a consolidated basis, as of the end of each
fiscal quarter of the Consolidated Parties for the twelve month period
ending on such date, the ratio of (a) the sum of (i) Consolidated
EBITDAR for the applicable period minus (ii) Consolidated Capital
Expenditures for the applicable period minus (iii) Consolidated Cash
Taxes for the applicable period to (b) the sum of (i) the cash portion
of Consolidated Interest Expense for the applicable period plus (ii)
Scheduled Funded Debt Payments for the applicable period plus (iii)
Consolidated Rental Expense for the applicable period plus (iv) the
aggregate amount of Permitted Stock Repurchases made during the
applicable period. Notwithstanding the foregoing, for purposes of
calculating the Fixed Charge Coverage Ratio as of the end of each
fiscal quarter through June 30, 2003, Consolidated Capital Expenditures
for the twelve month period ending as of the applicable fiscal quarter
(x) shall not include the QSI Acquisition Amount and (y) shall be
reduced by the amounts identified below:
Date of Fiscal Quarter End
--------------------------
June 30, 2002 $30,000,000
September 30, 2002 $30,000,000
December 31, 2002 $30,000,000
March 31, 2003 $20,000,000
June 30, 2003 $15,000,000
"Foreign Lender" shall have the meaning assigned to such term
in Section 3.11(d).
"Foreign Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is not a Domestic Subsidiary of such
Person.
"FRB" means the Board of Governors of the Federal Reserve
System of the United States.
"Fund" means any Person (other than a natural person) that is
(or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans or similar extensions of credit in the
ordinary course of its business.
"Funded Indebtedness" means, with respect to any Person,
without duplication, (a) all Indebtedness of such Person other than
Indebtedness of the types referred to in clause (e), (f), (g), (i), and
(l) of the definition of "Indebtedness" set forth in this Section 1.1,
(b) all Indebtedness of another Person of the type referred to in
clause (a) above secured by (or for which the holder of such Funded
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, (c) all Guaranty
Obligations of such Person with respect to Indebtedness of the type
referred to in clause (a) above of another Person and
11
(d) Indebtedness of the type referred to in clause (a) above of any
partnership or unincorporated joint venture in which such Person is a
general partner or a joint venturer.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of
Section 1.3.
"Governmental Authority" means any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantors" means a collective reference to each of the
Subsidiary Guarantors and "Guarantor" means any one of them.
"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, (a) to purchase any such Indebtedness or any
Property constituting security therefor, (b) 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, (c) to lease or purchase Property,
securities or services primarily for the purpose of assuring the holder
of such Indebtedness, or (d) 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 any interest rate protection
agreement or foreign currency exchange agreement.
"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
12
Person, whether or not the obligations secured thereby have been
assumed, (g) all Guaranty Obligations of such Person, (h) the principal
portion of all obligations of such Person under Capital Leases, (i) all
obligations of such Person under Hedging Agreements, (j) the maximum
amount of all standby 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) the principal portion of all obligations of such Person under
Synthetic Leases and (l) the Indebtedness of any partnership or
unincorporated joint venture in which such Person is a general partner
or a joint venturer.
"Interest Payment Date" means (a) as to Base Rate Loans, the
last day of each calendar month, the date of repayment of principal of
such Loan and the Maturity Date, and (b) as to Eurodollar Loans, the
last day of each applicable Interest Period, the date of repayment of
principal of such Loan and the Maturity Date, and in addition, where
the applicable Interest Period for a Eurodollar Loan is greater than
three months, then also the date three months from the beginning of the
Interest Period and each three months thereafter.
"Interest Period" means, as to Eurodollar Loans, a period of
one, two, three or six months' duration, as the Borrower may elect,
commencing, in each case, on the date of the borrowing (including
continuations and conversions thereof); 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 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)
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
Business Day of such calendar month.
"Investment" means (a) to the extent not constituting a
Consolidated Capital Expenditure, the acquisition (whether for cash,
property, services, assumption of Indebtedness, securities or
otherwise) of assets, Capital Stock, bonds, notes, debentures,
partnership, joint ventures or other ownership interests or other
securities of any Person or (b) any deposit with, or advance, loan or
other extension of credit to, any Person (other than deposits made in
connection with the purchase of equipment or other assets in the
ordinary course of business) or (c) any other capital contribution to
or investment in any Person, including, without limitation, any
Guaranty Obligations (including any support for a letter of credit
issued on behalf of such Person) incurred for the benefit of such
Person.
"ISP98" shall have the meaning assigned to such term in
Section 2.2(h).
"Issuing Lender" means Bank of America.
"Issuing Lender Fees" shall have the meaning assigned to such
term in Section 3.5(c)(ii).
13
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Exhibit 7.12 hereto, executed and delivered by an
Additional Credit Party in accordance with the provisions of Section
7.12.
"L/C Advance" means, with respect to each Lender, such
Lender's funding of its participation in any L/C Borrowing in
accordance with its pro rata share (based on the respective Revolving
Commitment Percentage of such Lender).
"L/C Borrowing" means an extension of credit resulting from a
drawing under any Letter of Credit which has not been reimbursed on the
date when made or refinanced by a Revolving Loan advance.
"L/C Credit Extension" means, with respect to any Letter of
Credit, the issuance thereof or extension of the expiry date thereof,
or the renewal or increase of the amount thereof.
"Lender" means any of the Persons identified as a "Lender" on
the signature pages hereto, and any Person which may become a Lender by
way of assignment in accordance with the terms hereof, together with
their successors and permitted assigns.
"Letter of Credit" means (a) any letter of credit issued by
the Issuing Lender for the account of the Borrower in accordance with
the terms of Section 2.2 and (b) any Existing Letter of Credit.
"Letter of Credit Application" means an application and
agreement for the issuance or amendment of a Letter of Credit in the
form from time to time in use by the Issuing Lender.
"Letter of Credit Expiration Date" means the day that is seven
days prior to the Maturity Date then in effect (or, if such day is not
a Business Day, the next preceding Business Day).
"Leverage Ratio" means, with respect to the Consolidated
Parties on a consolidated basis for the twelve month period ending on
the last day of any fiscal quarter, the ratio of (a) the sum of (i)
Funded Indebtedness of the Consolidated Parties on the last day of such
period plus (ii) Consolidated Rental Expense for such period multiplied
by six to (b) the sum of (i) Consolidated EBITDAR for such period.
"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
agreement to give any of the foregoing, 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).
14
"Loan" or "Loans" means the Revolving Loans (or a portion of
any Revolving Loan bearing interest at the Adjusted Base Rate or the
Adjusted Eurodollar Rate) and/or any Swingline Loan, individually or
collectively, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender to
issue Letters of Credit, and to honor payment obligations under,
Letters of Credit hereunder in an aggregate face amount at any time
outstanding (together with the amounts of any unreimbursed drawings
thereon) of up to the LOC Committed Amount and with respect to each
Lender, the commitment of each Lender to purchase participation
interests in the Letters of Credit.
"LOC Committed Amount" means FIFTY MILLION DOLLARS
($50,000,000).
"LOC Documents" means, 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 at risk or (ii) any collateral security for such obligations.
"LOC Obligations" means, 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 by the Borrower.
"Material Adverse Effect" means a material adverse effect on
(a) the business, operations, assets, property, condition (financial or
otherwise), liabilities or prospects of the Borrower and its
Subsidiaries taken as a whole, (b) the ability of any Credit Party to
perform any material obligation under the Credit Documents to which it
is a party or (c) the material rights and remedies of the Lenders under
the Credit Documents.
"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 Laws,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Maturity Date" means March 1, 2006, as such date may be
extended pursuant to Section 2.4 with respect to Approving Lenders
only.
"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 Sections 3(37) or 4001(a)(3) of ERISA.
15
"Multiple Employer Plan" means a Plan which any Consolidated
Party or any ERISA Affiliate and at least one employer other than the
Consolidated Parties or any ERISA Affiliate are contributing sponsors.
"Net Cash Proceeds" means the aggregate cash proceeds received
by the Consolidated Parties in respect of any Asset Disposition, Debt
Issuance, Equity Issuance, or Sale and Leaseback Transaction, net of
(a) direct costs (including, without limitation, legal, accounting and
investment banking fees, and sales commissions) and (b) taxes paid or
payable as a result thereof; it being understood that "Net Cash
Proceeds" shall include, without limitation, any cash received upon the
sale or other disposition of any non-cash consideration received by the
Consolidated Parties in any Asset Disposition, Debt Issuance, Equity
Issuance or Sale and Leaseback Transaction.
"Net Worth" means, as of any date with respect to the
Consolidated Parties on a consolidated basis, shareholder's equity or
net worth, as determined in accordance with GAAP.
"Note" or "Notes" means the Revolving Notes and/or the
Swingline Note, individually or collectively, as appropriate.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Exhibit 2.1(b)(i), as required by Section
2.1(b)(i).
"Notice of Extension/Conversion" means the written notice of
extension or conversion in substantially the form of Exhibit 3.2, as
required by Section 3.2.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the
lessee at any time) of any Property (whether real, personal or mixed)
which is not a Capital Lease other than any such lease in which that
Person is the lessor.
"Other Taxes" shall have the meaning assigned to such term in
Section 3.11.
"Participant" shall have the meaning assigned to such term in
Section 11.3(d).
"Participation Interest" means a purchase by a Lender of a
participation in Letters of Credit or LOC Obligations as provided in
Section 2.2, in Swingline Loans as provided in Section 2.3, or in any
Loans as provided in Section 3.14.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereof.
"Permitted Investments" means Investments which are either (i)
cash and Cash Equivalents; (ii) accounts receivable created, acquired
or made by any Consolidated Party in the ordinary course of business
and payable or dischargeable in accordance with
16
customary trade terms; (iii) Investments consisting of Capital Stock,
obligations, securities or other property received by any Consolidated
Party in settlement of accounts receivable (created in the ordinary
course of business) from bankrupt obligors; and (iv) investments in any
Credit Party.
"Permitted Liens" means:
(i) Liens (other than Liens created or imposed under
ERISA) for taxes, assessments or governmental charges or
levies not yet due or Liens for taxes being contested in good
faith by appropriate proceedings for which adequate reserves
determined in accordance with GAAP have been established (and
as to which the Property subject to any such Lien is not yet
subject to foreclosure, sale or loss on account thereof);
(ii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and suppliers
and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary
course of business, provided that such Liens secure only
amounts not yet due and payable or, if due and payable, are
unfiled and no other action has been taken to enforce the same
or are being contested in good faith by appropriate
proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which
the Property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof);
(iii) Liens (other than Liens created or imposed
under ERISA) incurred or deposits made by any Consolidated
Party in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types
of social security, or to secure the performance of tenders,
statutory obligations, bids, leases, government contracts,
performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of
borrowed money);
(iv) Liens in connection with attachments or
judgments (including judgment or appeal bonds) provided that
the judgments secured shall, within 30 days after the entry
thereof, have been discharged or execution thereof stayed
pending appeal, or shall have been discharged within 30 days
after the expiration of any such stay;
(v) 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;
(vi) Liens on Property securing purchase money
Indebtedness (including Capital Leases) to the extent
permitted under Section 8.1(b), provided
17
that any such Lien attaches to such Property concurrently with
or within 90 days after the acquisition thereof;
(vii) leases or subleases granted to others not
interfering in any material respect with the business of any
Consolidated Party;
(viii) any interest of title of a lessor under, and
Liens arising from UCC financing statements (or equivalent
filings, registrations or agreements in foreign jurisdictions)
relating to, leases permitted by this Credit Agreement;
(ix) normal and customary rights of setoff upon
deposits of cash in favor of banks or other depository
institutions;
(x) Liens of a collecting bank arising under Section
4-210 of the Uniform Commercial Code on items in the course of
collection; and
(xi) Liens existing as of the Closing Date and set
forth on Schedule 1.1(a); provided that (a) no such Lien shall
at any time be extended to or cover any Property other than
the Property subject thereto on the Closing Date and (b) the
principal amount of the Indebtedness secured by such Liens
shall not be extended, renewed, refunded or refinanced.
"Permitted Stock Repurchases" means, any purchase by the
Borrower of shares of its Capital Stock so long as (i) the Leverage
Ratio is less than 3.0 to 1.0 as of the fiscal quarter end immediately
preceding any such purchase and (ii) within five (5) Business Days of
any such purchase, the Borrower shall have provided to the
Administrative Agent a Pro Forma Compliance Certificate, demonstrating
that, upon giving effect to any such purchase on a pro forma basis, the
Credit Parties shall be in compliance with Section 7.11.
Notwithstanding the foregoing, if the Borrower publicly announces a
stock repurchase program, the Borrower shall only be required to
provide a Pro Forma Compliance Certificate within five (5) Business
Days of the last day of each calendar week with respect to any
repurchases of Capital Stock made pursuant to such program,
demonstrating that, upon giving effect to the repurchases made during
the applicable calendar week on a pro forma basis, the Credit Parties
shall be in compliance with Section 7.11.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, business trust,
association, trust or other enterprise (whether or not incorporated) or
any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which any
Consolidated Party or any ERISA Affiliate is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to
be) an "employer" within the meaning of Section 3(5) of ERISA.
18
"Prime Rate" means the per annum rate of interest established
from time to time by Bank of America as its prime rate, which rate may
not be the lowest rate of interest charged by Bank of America to its
customers.
"Pro Forma Compliance Certificate" means a certificate of the
chief financial officer of the Borrower delivered to the Administrative
Agent in connection with a Permitted Stock Repurchase and containing
reasonably detailed calculations, upon giving effect to the applicable
transaction on a pro forma basis, of Section 7.11.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"QSI Acquisition Amount" means the $29,300,000 paid by the
Borrower to purchase certain properties from the bankrupt estate of
Quality Stores, Inc.
"Register" shall have the meaning given such term in Section
11.3(c).
"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.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping
or disposing into the environment (including the abandonment or
discarding of barrels, containers and other closed receptacles) of any
Materials of Environmental Concern.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
notice requirement has been waived by regulation.
"Required Lenders" means, at any time, Lenders whose aggregate
Credit Exposure (as hereinafter defined) constitutes more than 50% of
the Credit Exposure of all Lenders at such time; provided, however,
that if any Lender shall be a Defaulting Lender at such time then there
shall be excluded from the determination of Required Lenders the
aggregate principal amount of Credit Exposure of such Lender at such
time. For purposes of the preceding sentence, the term "Credit
Exposure" as applied to each Lender shall mean (a) at any time prior to
the termination of the Commitments, the sum of the Revolving Commitment
Percentage of such Lender multiplied by the Revolving Committed Amount
and (b) at any time after the termination of the Commitments, the sum
of (i) the principal balance of the outstanding Loans of such Lender
plus (ii) such Lender's Participation Interests in the face amount of
the outstanding Letters of Credit and Swingline Loans.
"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 to
which any of its material property is subject.
19
"Responsible Officer" means the chief executive officer,
president, chief financial officer, treasurer or assistant treasurer of
a Credit Party. Any document delivered hereunder that is signed by a
Responsible Officer of a Credit Party shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or
other action on the party of such Credit Party and such Responsible
Officer shall be conclusively presumed to have acted on behalf of such
Credit Party.
"Restricted Payment" means (i) any dividend or other payment
or distribution, direct or indirect, on account of any shares of any
class of Capital Stock of any Consolidated Party, now or hereafter
outstanding (including without limitation any payment in connection
with any merger or consolidation involving any Consolidated Party), or
to the direct or indirect holders of any shares of any class of Capital
Stock of any Consolidated Party, now or hereafter outstanding, in their
capacity as such (other than dividends or distributions payable in the
same class of Capital Stock of the applicable Person or to any Credit
Party (directly or indirectly through Subsidiaries), (ii) 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 any Consolidated Party, now or hereafter
outstanding and (iii) 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 any Consolidated Party,
now or hereafter outstanding.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender in an aggregate principal amount at any time
outstanding of up to such Lender's Revolving Commitment Percentage of
the Revolving Committed Amount, (i) to make Revolving Loans in
accordance with the provisions of Section 2.1(a), (ii) to purchase
Participation Interests in Letters of Credit in accordance with the
provisions of Section 2.2(c) and (iii) to purchase Participation
Interests in Swingline Loans in accordance with the provisions of
Section 2.3(c).
"Revolving Commitment Percentage" means, for any Lender, the
percentage identified as its Revolving 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 11.3.
"Revolving Committed Amount" means ONE HUNDRED FIFTY-FIVE
MILLION DOLLARS ($155,000,000) as such amount may be reduced pursuant
to Section 3.4.
"Revolving Loans" shall have the meaning assigned to such term
in Section 2.1(a).
"Revolving Note" or "Revolving Notes" means the promissory
notes of the Borrower in favor of each of the Lenders evidencing the
Revolving Loans provided pursuant to Section 2.1(e), individually or
collectively, as appropriate, as such promissory notes may be amended,
modified, restated, supplemented, extended, renewed or replaced from
time to time.
20
"Revolving Obligations" means, collectively, the Revolving
Loans, the Swingline Loans and the LOC Obligations.
"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.
"Sale and Leaseback Transaction" means any arrangement
pursuant to which any Consolidated Party, directly or indirectly,
becomes liable as lessee, 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 such Consolidated Party has sold or transferred (or
is to sell or transfer) to a Person which is not a Consolidated Party
or (b) which such Consolidated Party intends to use for substantially
the same purpose as any other Property which has been sold or
transferred (or is to be sold or transferred) by such Consolidated
Party to another Person which is not a Consolidated Party in connection
with such lease.
"Scheduled Funded Debt Payments" means, as of the end of each
fiscal quarter of the Borrower, for the Borrower and its Subsidiaries
on a consolidated basis, the sum of all scheduled payments of principal
on Funded Indebtedness for the applicable period ending on such date
(including the principal component of payments due on Capital Leases
during the applicable period ending on such date); it being understood
that Scheduled Funded Debt Payments shall not include voluntary
prepayments or the mandatory prepayments required pursuant to Section
3.3.
"Second Extension Date" shall have the meaning assigned to
such term in Section 2.4(b).
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan or a Multiple
Employer Plan.
"Solvent" or "Solvency" means, with respect to any Person as
of a particular date, that on such date (i) such Person is able to
realize upon its assets and pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the
normal course of business, (ii) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature in their
ordinary course, (iii) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction,
for which such Person's Property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in
the industry in which such Person is engaged or is to engage, (iv) the
fair value of the Property of such Person is greater than the total
amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (v) the present fair salable value of
the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as
they become absolute and matured. In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will be
computed at the amount which, in light of all the facts and
circumstances existing at such
21
time, represents the amount that can reasonably be expected to become
an actual or matured liability.
"Standby Letter of Credit Fee" shall have the meaning assigned
to such term in Section 3.5(b)(i).
"Subsidiary" means, as to any Person at any time, (a) any
corporation more than 50% of whose Capital Stock of any class or
classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether
or not at such time, any class or classes of such corporation shall
have or might have voting power by reason of the happening of any
contingency) is at such time owned by such Person directly or
indirectly through Subsidiaries, and (b) any partnership, association,
joint venture or other entity of which such Person directly or
indirectly through Subsidiaries owns at such time more than 50% of the
Capital Stock.
"Subsidiary Guarantor" means each of the Persons identified as
a "Subsidiary Guarantor" on the signature pages hereto and each
Additional Credit Party which may hereafter execute a Joinder
Agreement, together with their successors and permitted assigns, and
"Subsidiary Guarantor" means any one of them.
"SunTrust Loan Agreement" means that certain Amended and
Restated Loan Agreement dated as of November 3, 2000 between the
Borrower and SunTrust Bank.
"Swingline Committed Amount" means Five Million Dollars
($5,000,000).
"Swingline Lender" means Bank of America, together with any
successors or assigns.
"Swingline Loan Request" means a request by the Borrower for a
Swingline Loan in substantially the form of Exhibit 2.3(b).
"Swingline Loans" means the loans made by the Swingline Lender
pursuant to Section 2.3.
"Swingline Note" means the promissory note of the Borrower in
favor of the Swingline Lender evidencing the Swingline Loans provided
pursuant to Section 2.3, as such promissory note may be amended,
modified, supplemented, extended, renewed or replaced from time to
time.
"Synthetic Lease" means any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet
financing product where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an Operating Lease.
"Taxes" shall have the meaning assigned to such term in
Section 3.11.
22
"Trade Letter of Credit Fee" shall have the meaning assigned
to such term in Section 3.5(b)(ii).
"Unreimbursed Amount" shall have the meaning assigned to such
term in Section 2.2(c)(i).
"Unused Fee" shall have the meaning assigned to such term in
Section 3.5(a).
"Unused Fee Calculation Period" shall have the meaning
assigned to such term in Section 3.5(a).
"Unused Revolving Committed Amount" means, for any period, the
amount by which (a) the then applicable Revolving Committed Amount
exceeds (b) the daily average sum for such period of (i) the
outstanding aggregate principal amount of all Revolving Loans plus (ii)
the outstanding aggregate principal amount of all LOC Obligations.
"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 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.
"Wholly Owned Subsidiary" of any Person means any Subsidiary
100% of whose Voting Stock or other equity interest is at the time
owned by such Person directly or indirectly through other Wholly Owned
Subsidiaries.
1.2 COMPUTATION OF TIME PERIODS.
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. All calculations made for the purposes of determining compliance with
this Credit Agreement 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 7.1 (or,
prior to the delivery of the first financial statements pursuant to Section 7.1,
consistent with the financial statements as at December 29, 2001); provided,
however, if (a) the Credit Parties 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
60 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 Credit Parties to the Lenders as to which no such objection
shall have been made.
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SECTION 2
CREDIT FACILITIES
2.1 REVOLVING LOANS.
(a) Revolving Commitment. Subject to the terms and
conditions hereof and in reliance upon the representations and
warranties set forth herein, each Lender severally agrees to make
available to the Borrower such Lender's Revolving Commitment Percentage
of revolving credit loans requested by the Borrower in Dollars
("Revolving Loans") from time to time from the Closing Date until the
Maturity Date, or such earlier date as the Revolving Commitments shall
have been terminated as provided herein; provided, however, that (i)
with regard to the Lenders collectively, the amount of the Revolving
Obligations outstanding shall not exceed the Revolving Committed
Amount; provided, further, (ii) with regard to each Lender
individually, such Lender's Revolving Commitment Percentage of the sum
of the Revolving Loans plus LOC Obligations outstanding plus Swingline
Loans outstanding shall not exceed such Lender's Revolving Commitment
Percentage of the Revolving Committed Amount. Revolving Loans may
consist of Base Rate Loans or Eurodollar Loans, or a combination
thereof, as the Borrower may request; provided, however, that no more
than five Eurodollar Loans shall be outstanding hereunder at any time
(it being understood that, for purposes hereof, Eurodollar Loans with
different Interest Periods shall be considered as separate Eurodollar
Loans, even if they begin on the same date, although borrowings,
extensions and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period).
Revolving Loans hereunder 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 telephonic
notice promptly confirmed in writing) to the Administrative
Agent not later than 12:00 Noon (Charlotte, North Carolina
time) on the Business Day of the requested borrowing in the
case of Base Rate Loans, and on the second Business Day prior
to the date of the requested borrowing in the case of
Eurodollar 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 Base Rate Loans, Eurodollar Loans or a
combination thereof, and if Eurodollar 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 Eurodollar 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 Base
Rate Loan hereunder. The Administrative Agent shall give
notice to each affected Lender promptly upon receipt of each
Notice of
24
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 Base Rate Loan that is a
Revolving Loan shall be in a minimum aggregate principal
amount of $100,000 and integral multiples of $1,000 in excess
thereof (or the remaining amount of the Revolving Committed
Amount, if less), and each Eurodollar Loan that is a Revolving
Loan shall be in a minimum aggregate principal amount of
$2,500,000 and integral multiples of $1,000,000 in excess
thereof (or the remaining amount of the Revolving Committed
Amount, if less).
(iii) Advances. Each Lender will make its Revolving
Commitment Percentage of each Revolving Loan borrowing
available to the Administrative Agent for the account of the
Borrower as specified in Section 3.15(a), or in such other
manner as the Administrative Agent may specify in writing, by
1:00 p.m. (Charlotte, North Carolina time) 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 of the
Borrower on the books of such office 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.
(c) Repayment. The principal amount of all Revolving
Loans shall be due and payable in full on the Maturity Date, unless
accelerated sooner pursuant to Section 9.2.
(d) Interest. Subject to the provisions of Section 3.1,
(i) Base Rate Loans. During such periods as Revolving
Loans shall be comprised in whole or in part of Base Rate
Loans, such Base Rate Loans shall bear interest at a per annum
rate equal to the Adjusted Base Rate.
(ii) Eurodollar Loans. During such periods as
Revolving Loans shall be comprised in whole or in part of
Eurodollar Loans, such Eurodollar Loans shall bear interest at
a per annum rate equal to the Adjusted Eurodollar Rate.
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) Revolving Notes. The Revolving Loans made by each
Lender shall be evidenced by a duly executed promissory note of the
Borrower to such Lender in an original principal amount equal to such
Lender's Revolving Commitment Percentage of the Revolving Committed
Amount and in substantially the form of Exhibit 2.1(e).
25
2.2 LETTER OF CREDIT SUBFACILITY.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set
forth herein, (A) the Issuing Lender agrees, in reliance upon
the agreements of the other Lenders set forth in this Section
2.2, (1) from time to time on any Business Day during the
period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of
the Borrower, and to amend Letters of Credit previously issued
by it, in accordance with subsection (b) below, and (2) to
honor drafts under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for
the account of the Borrower; provided that the Issuing Lender
shall not be obligated to make any L/C Credit Extension with
respect to any Letter of Credit, and no Lender shall be
obligated to participate in any Letter of Credit if as of the
date of such L/C Credit Extension, (x) the sum of the
Revolving Loans outstanding plus LOC Obligations outstanding
plus Swingline Loans outstanding would exceed the Revolving
Committed Amount, (y) with regard to any Lender individually,
such Lender's Revolving Commitment Percentage of the sum of
the Revolving Loans outstanding plus LOC Obligations
outstanding plus Swingline Loans outstanding would exceed such
Lender's Revolving Commitment Percentage of the Revolving
Committed Amount or (z) the amount of LOC Obligations
outstanding would exceed the LOC Committed Amount. Within the
foregoing limits, and subject to the terms and conditions
hereof, the Borrower's ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrower may,
during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been
drawn upon and reimbursed. All Existing Letters of Credit
shall be deemed to have been issued pursuant hereto, and from
and after the Closing Date shall be subject to and governed by
the terms and conditions hereof.
(ii) The Issuing Lender shall be under no
obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its
terms purport to enjoin or restrain the Issuing
Lender from issuing such Letter of Credit, or any law
applicable to the Issuing Lender or any request or
directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction
over the Issuing Lender shall prohibit, or request
that the Issuing Lender refrain from, the issuance of
letters of credit generally or such Letter of Credit
in particular or shall impose upon the Issuing Lender
with respect to such Letter of Credit any
restriction, reserve or capital requirement (for
which the Issuing Lender is not otherwise compensated
hereunder) not in effect on the Closing Date, or
shall impose upon the Issuing Lender any unreimbursed
loss, cost or expense which was not applicable on the
26
Closing Date and which the Issuing Lender in good
faith deems material to it;
(B) subject to Section 2.2(b)(iii), the
expiry date of such requested Letter of Credit would
occur more than twelve months after the date of
issuance, unless the Required Lenders have approved
such expiry date;
(C) the expiry date of such requested Letter
of Credit would occur after the Letter of Credit
Expiration Date, unless all the Lenders have approved
such expiry date; or
(D) such Letter of Credit is to be used for
a purpose other than is permitted by Section 7.9 or
denominated in a currency other than Dollars.
(iii) The Issuing Lender shall be under no
obligation to amend any Letter of Credit if (A) the Issuing
Lender would have no obligation at such time to issue such
Letter of Credit in its amended form under the terms hereof,
or (B) the beneficiary of such Letter of Credit does not
accept the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of
Credit.
(i) Each Letter of Credit shall be issued or
amended, as the case may be, upon the request of the Borrower
delivered to the Issuing Lender (with a copy to the
Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a
Responsible Officer of the Borrower. Such Letter of Credit
Application must be received by the Issuing Lender and the
Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the Issuing
Lender may agree in a particular instance in its sole
discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to
the Issuing Lender: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day);
(B) the amount thereof; (C) the expiry date thereof; (D) the
name and address of the beneficiary thereof; (E) the documents
to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the Issuing Lender
may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to
the Issuing Lender (A) the Letter of Credit to be amended; (B)
the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and
(D) such other matters as the Issuing Lender may require.
27
(ii) Promptly after receipt of any Letter of
Credit Application, the Issuing Lender will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of
Credit Application from the Borrower and, if not, the Issuing
Lender will provide the Administrative Agent with a copy
thereof. Upon receipt by the Issuing Lender of confirmation
from the Administrative Agent that the requested issuance or
amendment is permitted in accordance with the terms hereof,
then, subject to the terms and conditions hereof, the Issuing
Lender shall, on the requested date, issue a Letter of Credit
for the account of the Borrower or enter into the applicable
amendment, as the case may be, in each case in accordance with
the Issuing Lender's usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Lender a
risk participation in such Letter of Credit in an amount equal
to its pro rata share of the obligations under such Letter of
Credit (based on the Revolving Commitment Percentage of such
Lender).
(iii) Promptly after its delivery of any Letter of
Credit or any amendment to a Letter of Credit to an advising
bank with respect thereto or to the beneficiary thereof, the
Issuing Lender will also deliver to the Borrower and the
Administrative Agent a true and complete copy of such Letter
of Credit or amendment.
(c) Drawings and Reimbursements; Funding of
Participations.
(i) Upon receipt from the beneficiary of any
Letter of Credit of any notice of a drawing under such Letter
of Credit, the Issuing Lender shall notify the Borrower and
the Administrative Agent thereof. Not later than 11:00 a.m. on
the date of any payment by the Issuing Lender under a Letter
of Credit (each such date, an "Honor Date"), the Borrower
shall reimburse the Issuing Lender through the Administrative
Agent in an amount equal to the amount of such drawing. If the
Borrower fails to so reimburse the Issuing Lender by such
time, the Administrative Agent shall promptly notify each
Lender of the Honor Date, the amount of the unreimbursed
drawing (the "Unreimbursed Amount"), and the amount of such
Lender's pro rata share thereof (based on the respective
Revolving Commitment Percentage of such Lender). In such
event, the Borrower shall be deemed to have requested a
Revolving Loan advance comprised of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.1 for the principal amount of
Base Rate Loans, but subject to the amount of the unutilized
portion of the Revolving Committed Amount and the conditions
set forth in Section 5.2 (other than the delivery of a Notice
of Borrowing). Any notice given by the Issuing Lender or the
Administrative Agent pursuant to this Section 2.2(c)(i) may be
given by telephone if immediately
28
confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(ii) Each Lender (including the Lender acting as
Issuing Lender) shall upon any notice pursuant to Section
2.2(c)(i) make funds available to the Administrative Agent for
the account of the Issuing Lender at the Administrative
Agent's Office in an amount equal to its pro rata share of the
Unreimbursed Amount (based on the respective Revolving
Commitment Percentage of such Lender) not later than 1:00 p.m.
on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of
Section 2.2(c)(iii), each Lender that so makes funds available
shall be deemed to have made a Base Rate Loan to the Borrower
in such amount. The Administrative Agent shall remit the funds
so received to the Issuing Lender.
(iii) With respect to any Unreimbursed Amount that
is not fully refinanced by a Revolving Loan advance because
the conditions set forth in Section 5.2 cannot be satisfied or
for any other reason, the Borrower shall be deemed to have
incurred from the Issuing Lender an L/C Borrowing in the
amount of the Unreimbursed Amount that is not so refinanced,
which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the
Default Rate. In such event, each Lender's payment to the
Administrative Agent for the account of the Issuing Lender
pursuant to Section 2.2(c)(ii) shall be deemed payment in
respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of
its participation obligation under this Section 2.2.
(iv) Until each Lender funds its Revolving Loan
or L/C Advance pursuant to this Section 2.2(c) to reimburse
the Issuing Lender for any amount drawn under any Letter of
Credit, interest in respect of such Lender's pro rata share
(based on the respective Revolving Commitment Percentage of
such Lender) of such amount shall be solely for the account of
the Issuing Lender.
(v) Each Lender's obligation to make Revolving
Loans or L/C Advances to reimburse the Issuing Lender for
amounts drawn under Letters of Credit, as contemplated by this
Section 2.2(c), shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any
set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the Issuing Lender, the
Borrower or any other Person for any reason whatsoever; (B)
the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any
of the foregoing; provided, however, that each Lender's
obligation to make Revolving Loans pursuant to this Section
2.2(c) is subject to the conditions set forth in Section 5.2
(other than delivery by the Borrower of a Notice of
Borrowing). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Borrower to reimburse
the Issuing Lender for the amount of any payment made
29
by the Issuing Lender under any Letter of Credit, together
with interest as provided herein.
(vi) If any Lender fails to make available to the
Administrative Agent for the account of the Issuing Lender any
amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.2(c) by the time
specified in Section 2.2(c)(ii), the Issuing Lender shall be
entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required
to the date on which such payment is immediately available to
the Issuing Lender at a rate per annum equal to the Federal
Funds Rate from time to time in effect. A certificate of the
Issuing Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under
this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the Issuing Lender has
made a payment under any Letter of Credit and has received
from any Lender such Lender's L/C Advance in respect of such
payment in accordance with Section 2.2(c), if the
Administrative Agent receives for the account of the Issuing
Lender any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Borrower
or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), the Administrative Agent
will distribute to such Lender its pro rata share thereof
(based on the respective Revolving Commitment Percentage of
such Lender) (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such
Lender's L/C Advance was outstanding) in the same funds as
those received by the Administrative Agent.
(ii) If any payment received by the
Administrative Agent for the account of the Issuing Lender
pursuant to Section 2.2(c)(i) is required to be returned under
any of the circumstances described in Section 3.14 (including
pursuant to any settlement entered into by the Issuing Lender
in its discretion), each Lender shall pay to the
Administrative Agent for the account of the Issuing Lender its
pro rata share thereof (based on the respective Revolving
Commitment Percentage of such Lender) on demand of the
Administrative Agent, plus interest thereon from the date of
such demand to the date such amount is returned by such
Lender, at a rate per annum equal to the Federal Funds Rate
from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower
to reimburse the Issuing Lender for each drawing under each Letter of
Credit and to repay each L/C Borrowing shall be absolute, unconditional
and irrevocable, and shall be paid strictly in accordance with the
terms of this Credit Agreement under all circumstances, including the
following:
30
(i) any lack of validity or enforceability of
such Letter of Credit, this Credit Agreement, or any other
agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim,
set-off, defense or other right that the Borrower may have at
any time against any beneficiary or any transferee of such
Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the Issuing Lender or
any other Person, whether in connection with this Credit
Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating
thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other
document presented under such Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any
respect; or any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the Issuing Lender under
such Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of
such Letter of Credit; or any payment made by the Issuing
Lender under such Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for
the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in
connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing,
including any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the
Borrower.
The Borrower shall promptly examine a copy of each Letter of
Credit and each amendment thereto that is delivered to it and, in the
event of any claim of noncompliance with the Borrower's instructions or
other irregularity, the Borrower will immediately notify the Issuing
Lender. The Borrower shall be conclusively deemed to have waived any
such claim against the Issuing Lender and its correspondents unless
such notice is given as aforesaid.
(f) Role of Issuing Lender. Each Lender and the Borrower
agree that, in paying any drawing under a Letter of Credit, the Issuing
Lender shall not have any responsibility to obtain any document (other
than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person executing
or delivering any such document. None of the Issuing Lender, any
Agent-Related Person nor any of the respective correspondents,
participants or assignees of the Issuing Lender shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at
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the request or with the approval of the Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence
of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument
related to any Letter of Credit or Letter of Credit Application. The
Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and
shall not, preclude the Borrower's pursuing such rights and remedies as
it may have against the beneficiary or transferee at law or under any
other agreement. None of the Issuing Lender, any Agent-Related Person,
nor any of the respective correspondents, participants or assignees of
the Issuing Lender, shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.2(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the Issuing
Lender, and the Issuing Lender may be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the
Borrower proves were caused by the Issuing Lender's willful misconduct
or gross negligence or the Issuing Lender's willful failure to pay
under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not
in limitation of the foregoing, the Issuing Lender may accept documents
that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the
contrary, and the Issuing Lender shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the
Administrative Agent, (i) if the Issuing Lender has honored any full or
partial drawing request under any Letter of Credit and such drawing has
resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit
Expiration Date, any Letter of Credit may for any reason remain
outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the LOC Obligations outstanding (in an
amount equal to the amount of LOC Obligations outstanding determined as
of the date of such L/C Borrowing or the Letter of Credit Expiration
Date, as the case may be). For purposes hereof, "Cash Collateralize"
means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the Issuing Lender and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances
pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the Issuing Lender (which documents are hereby
consented to by the Lenders). The Borrower hereby grants to the
Administrative Agent, for the benefit of the Issuing Lender and the
Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing. Cash collateral
shall be maintained in blocked, non-interest bearing deposit accounts
at Bank of America.
(h) Applicability of ISP98 and UCP. Unless otherwise
expressly agreed by the Issuing Lender and the Borrower when a Letter
of Credit is issued (including any such agreement applicable to an
Existing Letter of Credit), (i) the rules of the "International
32
Standby Practices 1998" published by the Institute of International
Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International
Chamber of Commerce (the "ICC") at the time of issuance (including the
ICC decision published by the Commission on Banking Technique and
Practice on April 6, 1998 regarding the European single currency
(euro)) shall apply to each commercial Letter of Credit.
(i) Conflict with Letter of Credit Application. In the
event of any conflict between the terms hereof and the terms of any
Letter of Credit Application, the terms hereof shall control.
2.3 SWINGLINE LOANS SUBFACILITY.
(a) Swingline Loans. Subject to the terms and conditions
set forth herein and in the other Credit Documents and in reliance upon
the representations and warranties set forth herein, the Swingline
Lender hereby agrees to make loans to the Borrower in Dollars at any
time and from time to time from the Closing Date to but not including
the Maturity Date, or such earlier date as the Revolving Commitments
shall have been terminated as provided herein (each such loan, a
"Swingline Loan" and collectively, the "Swingline Loans"); provided
that (i) the aggregate principal amount of the Swingline Loans
outstanding at any one time shall not exceed the Swingline Committed
Amount and (ii) with regard to the Lenders collectively, the amount of
Revolving Obligations outstanding shall not exceed the Revolving
Committed Amount. Prior to the Maturity Date, Swingline Loans may be
repaid and reborrowed by the Borrower in accordance with the provisions
hereof.
(b) Method of Borrowing and Funding Swingline Loans. By
no later than 1:00 p.m. (Charlotte, North Carolina time), on the date
of the requested borrowing of Swingline Loans, the Borrower shall
telephone the Swingline Lender as well as submit a Swingline Loan
Request to the Swingline Lender in the form of Exhibit 2.3(b) setting
forth (i) the amount of the requested Swingline Loan and (ii) the date
of the requested Swingline Loan and complying in all respects with
Section 5.2. The Swingline Lender shall initiate the transfer of funds
representing the Swingline Loan advance to the Borrower by 3:00 p.m. on
the Business Day of the requested borrowing. Each Swingline Loan shall
be in a minimum amount of $100,000 and in integral multiples of $1,000
in excess thereof.
(c) Repayment and Participations of Swingline Loans. The
Borrower agrees to repay all Swingline Loans within five Business Days
of demand therefor by the Swingline Lender. Each repayment of a
Swingline Loan may be accomplished by requesting Revolving Loans which
request is not subject to the conditions set forth in Section 5.2. In
the event that the Borrower shall fail to timely repay any Swingline
Loan, and in any event upon (i) a request by the Swingline Lender, (ii)
the occurrence of an Event of Default described in Section 9.1(f) or
(iii) the acceleration of any Loan or termination of any Commitment
pursuant to Section 9.2, each other Lender shall irrevocably and
unconditionally purchase from the Swingline Lender, without recourse or
warranty, an
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undivided interest and participation in such Swingline Loan in an
amount equal to such other Lender's Revolving Commitment Percentage
thereof, by directly purchasing a participation in such Swingline Loan
in such amount (regardless of whether the conditions precedent thereto
set forth in Section 5.2 are then satisfied, whether or not the
Borrower has submitted a Notice of Borrowing and whether or not the
Commitments are then in effect, any Event of Default exists or all the
Loans have been accelerated) and paying the proceeds thereof to the
Swingline Lender at the address provided in Section 11.1, or at such
other address as the Swingline Lender may designate, in Dollars and in
immediately available funds. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline Lender
shall be entitled to recover such amount on demand from such Lender,
together with accrued interest thereon for each day from the date of
demand thereof, at the Federal Funds Rate. If such Lender does not pay
such amount forthwith upon the Swingline Lender's demand therefor, and
until such time as such Lender makes the required payment, the
Swingline Lender shall be deemed to continue to have outstanding
Swingline Loans in the amount of such unpaid participation obligation
for all purposes of the Credit Documents other than those provisions
requiring the other Lenders to purchase a participation therein.
Further, such Lender shall be deemed to have assigned any and all
payments made of principal and interest on its Loans, and any other
amounts due to it hereunder to the Swingline Lender to fund Swingline
Loans in the amount of the participation in Swingline Loans that such
Lender failed to purchase pursuant to this Section 2.3(c) until such
amount has been purchased (as a result of such assignment or
otherwise). The principal amount of all Swingline Loans shall be due
and payable in full on the Maturity Date, unless accelerated sooner
pursuant to Section 9.2 or required to be repaid by the Swingline
Lender pursuant to the foregoing terms of this Section 2.3(c).
(d) Interest. Subject to the provisions of Section 3.1,
each Swingline Loan shall bear interest at a per annum rate equal to
the 30-Day Interbank Offered Rate plus the Applicable Percentage.
(e) Swingline Note. The Swingline Loans made by the
Swingline Lender shall be evidenced by a duly executed promissory note
of the Borrower to the Swingline Lender in the face amount of the
Swingline Committed Amount and in substantially the form of Exhibit
2.3(e).
2.4 EXTENSION OPTION.
(a) First Extension Option. The Borrower may, by notice
to the Lenders, given not more than 90 days and not less than 45 days
prior to March 1, 2004 (the "First Extension Date") request that the
Lenders extend the Maturity Date for an additional 364 days from the
existing Maturity Date. Each Lender shall, by notice to the Borrower
and the Administrative Agent given not later than the 30th day prior to
the First Extension Date, advise the Borrower whether or not it agrees
to extend the Maturity Date for an additional 364 days. Each decision
by a Lender shall be in the sole discretion of such Lender, and any
Lender that has not so advised the Administrative Agent by the 30th day
prior to the First Extension Date shall be deemed to have declined to
agree to such extension.
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(b) Second Extension Option. The Borrower may, by notice
to the Lenders, given not more than 90 days and not less than 45 days
prior to March 1, 2005 (the "Second Extension") request that the
Lenders extend the Maturity Date for an additional 364 days from the
existing Maturity Date. Each Lender shall, by notice to the Borrower
and the Administrative Agent given not later than the 30th day prior to
the Second Extension Date, advise the Borrower whether or not it agrees
to extend the Maturity Date for an additional 364 days. Each decision
by a Lender shall be in the sole discretion of such Lender, and any
Lender that has not so advised the Administrative Agent by the 30th day
prior to the Second Extension Date shall be deemed to have declined to
agree to such extension.
(c) Non-Extending Lenders. If, in response to a request
for an extension of the Maturity Date, one or more Lenders shall fail
to agree to the requested extension (each a "Non-Extending Lender"),
then the Borrower may elect to either (i) continue the credit facility
hereunder at the same level of Commitments by replacing each of the Non
Extending Lenders with Replacement Lenders (as defined below) pursuant
to the terms of Section 2.4(d) or (ii) provided that the requested
extension is approved by Lenders holding more than 50% of the
Commitments hereunder (including for purposes hereof any Replacement
Lender which may replace a Non-Extending Lender, (the "Approving
Lenders"), extend and continue the credit facility at a lower aggregate
amount equal to the Commitments held by the Approving Lenders. In any
such case, (x) the Maturity Date relating to the Commitments held by
the Non-Extending Lenders shall remain as in effect with repayment of
the obligations held by such Non-Extending Lenders being due on such
date and termination of their respective Commitments on such date and
(y) the Maturity Date relating to the Commitments held by the Approving
Lenders shall be extended by an additional 364 days. Each of the
parties hereto acknowledges and agrees that no Lender shall be
obligated to extend the Maturity Date pursuant to the terms of this
Section 2.4.
(d) Replacement of Lenders. So long as no Default or
Event of Default then exists, the Borrower may, not later than the 20th
day prior to the First Extension Date and the Second Extension Date, as
applicable, by writing addressed to the Administrative Agent and any
Non-Extending Lender nominate or propose an Eligible Assignee that is
willing to become the assignee of the Commitment and other obligations
of such Non-Extending Lender (the "Replacement Lender") pursuant to
Section 11.3. Each such Non-Extending Lender and Replacement Lender
shall execute and deliver to the Administrative Agent an Assignment
Agreement and such other documentation as the Administrative Agent
shall specify to evidence such assignment, unless the Administrative
Agent shall have notified the Borrower and the Non-Extending Lender
that the proposed Replacement Lender is not reasonably acceptable to
the Administrative Agent; provided, that in no event will (i) any
Lender be required to enter into an Assignment Agreement at a price
less than par plus accrued interest and prorated fees and other costs
due hereunder to the effective date of such Assignment Agreement, (ii)
the Administrative Agent or any Non-Extending Lender be obligated to
assist the Borrower in identifying any Eligible Assignees that are
willing to become a Replacement Lender or
35
(iii) any such assignment be required if the consummation thereof
conflicts with any Requirement of Law.
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 bear interest, payable on demand, at a per annum rate 2% greater than the
rate which would otherwise be applicable (or if no rate is applicable, whether
in respect of interest, fees or other amounts, then the Adjusted Base Rate plus
2%).
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
provided in Section 3.8, Eurodollar Loans may be converted into Base Rate Loans
or extended as Eurodollar Loans for new Interest Periods only on the last day of
the Interest Period applicable thereto, (ii) without the consent of the Required
Lenders, Eurodollar Loans may be extended, and Base Rate Loans may be converted
into Eurodollar Loans, only if the conditions precedent set forth in Section 5.2
are satisfied on the date of extension or conversion, (iii) Loans extended as,
or converted into, Eurodollar 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), (iv) no more than five
Eurodollar Loans shall be outstanding hereunder at any time (it being understood
that, for purposes hereof, Eurodollar Loans with different Interest Periods
shall be considered as separate Eurodollar Loans, even if they begin on the same
date, although borrowings, extensions and conversions may, in accordance with
the provisions hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period) and (v) any
request for extension or conversion of a Eurodollar 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 telephonic notice
promptly confirmed in writing) to the office of the Administrative Agent
specified in specified in Schedule 2.1(a), or at such other office as the
Administrative Agent may designate in writing, prior to 12:00 Noon (Charlotte,
North Carolina time) on the Business Day of, in the case of the conversion of a
Eurodollar Loan into a Base Rate Loan, and on the second Business Day prior to,
in the case of the extension of a Eurodollar Loan as, or conversion of a Base
Rate Loan into, a Eurodollar Loan, the date of the proposed extension or
conversion, specifying the date of the proposed extension or conversion, the
Loans to be so extended or converted, the types of Loans into which such Loans
are to be converted and, if appropriate, 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 subsections (b), (c), (d), (e) and (f) of Section 5.2. In
the event the
36
Borrower fails to request extension or conversion of any Eurodollar Loan in
accordance with this Section, or any such conversion or extension is not
permitted or required by this Section, then such Eurodollar Loan shall be
automatically converted into a 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 PREPAYMENTS.
(a) Voluntary Prepayments. The Borrower shall have the
right to prepay Loans in whole or in part from time to time; provided,
however, that each partial prepayment of Loans shall be in a minimum
principal amount of $1,000,000 and integral multiples of $100,000.
Subject to the foregoing terms, amounts prepaid under this Section
3.3(a) shall be applied as the Borrower may elect; provided that if the
Borrower fails to specify a voluntary prepayment then such prepayment
shall be applied to Revolving Loans, in each case first to Base Rate
Loans and then to Eurodollar Loans in direct order of Interest Period
maturities. All prepayments under this Section 3.3(a) shall be subject
to Section 3.12, but otherwise without premium or penalty.
(b) Mandatory Prepayments.
(i) Revolving Committed Amount. If at any time
(A) the sum of the aggregate amount of the outstanding
Revolving Loans plus LOC Obligations outstanding plus
Swingline Loans outstanding shall exceed the Revolving
Committed Amount, (B) the aggregate amount of LOC Obligations
outstanding shall exceed the LOC committed Amount or (C) the
aggregate amount of Swingline Loans outstanding shall exceed
the Swingline Committed Amount, the Borrower shall immediately
make payment on the Loans and/or cash collateralize the LOC
Obligations in an amount sufficient to eliminate such excess.
(ii) Asset Dispositions. Promptly (and in any
event within 5 Business Days) after the occurrence of any
Asset Disposition, the Borrower shall prepay the Loans in an
aggregate amount equal to one hundred percent (100%) of the
Net Cash Proceeds of the related Asset Disposition (such
prepayment to be applied as set forth in clause (v) below).
(iii) Debt Issuances. Immediately upon receipt by
the Consolidated Parties of proceeds from any Debt Issuance or
any Sale and Leaseback Transaction, the Borrower shall prepay
the Loans in an aggregate amount equal to one hundred percent
(100%) of the Net Cash Proceeds from such Debt Issuance or
Sale and Leaseback Transaction, as applicable (such prepayment
to be applied as set forth in clause (v) below).
(iv) Equity Issuances. Promptly (and in any event
within 5 Business Days) after receipt by a Consolidated Party
of proceeds from any Equity Issuance, the Borrower shall
prepay the Loans in an aggregate amount equal to 100% of the
37
Net Cash Proceeds from such Equity Issuances (such prepayment
to be applied as set forth in clause (v) below).
(v) Application of Mandatory Prepayments. All
amounts required to be paid pursuant to Section 3.3(b) shall
be applied as follows: (A) with respect to all amounts prepaid
pursuant to Section 3.3(b)(i)(A), to the Revolving Loans and
(after all Revolving Loans have been repaid), to Swingline
Loans and (after all Swingline Loans have been repaid) to a
cash collateral account in respect of LOC Obligations, (B)
with respect to all amounts prepaid pursuant to Section
3.3(b)(i)(B), to a cash collateral account in respect of LOC
Obligations, (C) with respect to all amounts prepaid pursuant
to Section 3.3(b)(i)(C), to Swingline Loans, (D) with respect
to all amounts prepaid pursuant to Section 3.3(b)(ii), first
to the Revolving Loans until paid in full, then to the
Swingline Loans until paid in full, and then to a cash
collateral account in respect to LOC Obligations, and with
respect to any Asset Disposition not permitted by Section 8.5,
each such prepayment made pursuant to Section 3.3(b)(ii) shall
accompanied by a corresponding reduction in the Revolving
Committed Amount, (E) with respect to all amounts prepaid
pursuant to Section 3.3(b)(iii) and (iv), first to the
Revolving Loans until paid in full, then to the Swingline
Loans until paid in full, and then to a cash collateral
account in respect of LOC Obligations, provided, however, at
such time as the aggregate amounts prepaid pursuant to Section
3.3(b)(iii) exceed $35 million, each such prepayment made
pursuant to Section 3.3(b)(iii) shall be accompanied by a
corresponding reduction in the Revolving Committed Amount.
Notwithstanding the foregoing, with respect to any prepayment
pursuant to Section 3.3(b)(ii), (iii) or (iv), so long as no
Default or Event of Default exists, the Borrower shall not be
required to cash collateralize the LOC Obligations outstanding
as of the date of such prepayment provided that the Revolving
Committed Amount as of the date of such prepayment exceeds the
LOC Obligations outstanding as of such date. Within the
parameters of the applications set forth above, prepayments
shall be applied first to Base Rate Loans and then to
Eurodollar Loans in direct order of Interest Period
maturities. All prepayments under this Section 3.3(b) shall be
subject to Section 3.12.
3.4 TERMINATION AND REDUCTION OF REVOLVING COMMITTED AMOUNT.
(a) Voluntary Reductions. The Borrower may from time to
time permanently reduce or terminate the Revolving Committed Amount in
whole or in part (in minimum aggregate amounts of $5,000,000 or in
integral multiples of $1,000,000 in excess thereof (or, if less, the
full remaining amount of the then applicable Revolving Committed
Amount)) upon five Business Days' prior written notice to the
Administrative Agent; provided, that, no such termination or reduction
shall be made which would cause the sum of the aggregate principal
amount of the outstanding Revolving Loans plus LOC Obligations plus
Swingline Loans to exceed the Revolving Committed Amount or unless,
concurrently with such termination or reduction, the Loans are repaid
to the extent necessary to eliminate such excess. The Administrative
Agent shall promptly notify each affected Lender of receipt by the
Administrative Agent of any notice from the Borrower pursuant to this
Section 3.4(a).
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(b) Mandatory Reductions. The Revolving Committed Amount
automatically shall be permanently reduced in accordance with the terms
of Section 3.3(b)(v).
(c) Maturity Date. The Revolving Commitments of the
Lenders, the LOC Commitment of the Issuing Lender and the Swingline
Commitment of the Swingline Lender shall automatically terminate on the
Maturity Date, as applicable.
3.5 FEES.
(a) Unused Fee. In consideration of the Revolving
Commitments of the Lenders hereunder, the Borrower agrees to pay to the
Administrative Agent for the account of each Lender a fee (the "Unused
Fee") equal to the Applicable Percentage per annum for Unused Fees then
in effect on the Unused Revolving Committed Amount for each day during
the applicable Unused Fee Calculation Period (hereinafter defined). The
Unused Fee shall commence to accrue on the Closing Date and shall be
due and payable in arrears on the last business day of each March,
June, September and December (and any date that the Revolving Committed
Amount is reduced as provided in Section 3.4 and the Maturity Date) for
the immediately preceding quarter (or portion thereof) (each such
quarter or portion thereof for which the Unused Fee is payable
hereunder being herein referred to as an "Unused Fee Calculation
Period"), beginning with the first of such dates to occur after the
Closing Date. For purposes of computation of the Unused Fees, the
Swingline Loans shall not be counted toward or considered usage of the
Revolving Committed Amount.
(b) Letter of Credit Fees.
(i) Standby Letter of Credit Issuance Fee. In
consideration of the issuance of standby Letters of Credit
hereunder, the Borrower promises to pay to the Administrative
Agent for the account of each Lender a fee (the "Letter of
Credit Fee") on such Lender's Revolving Commitment Percentage
of the average daily maximum amount available to be drawn
under each such standby Letter of Credit computed at a per
annum rate for each day from the date of issuance to the date
of expiration equal to the Applicable Percentage. The Standby
Letter of Credit Fee will be payable quarterly in arrears on
the last Business Day of each March, June, September and
December for the immediately preceding quarter (or a portion
thereof).
(ii) Trade Letter of Credit Drawing Fee. In
consideration of the issuance of trade Letters of Credit
hereunder, the Borrower promises to pay to the Administrative
Agent for the account of each Lender a fee (the "Trade Letter
of Credit Fee") on such Lender's Revolving Commitment
Percentage of the average daily maximum amount available to be
drawn under each such trade Letter of Credit computed at a per
annum rate for each day from the date of issuance to the date
of expiration equal to the Applicable Percentage. The Trade
Letter of Credit Fee will be payable quarterly in arrears on
the last Business Day of each March, June,
39
September and December for the immediately preceding quarter
(or a portion thereof).
(iii) Issuing Lender Fees. In addition to the
Standby Letter of Credit Fee payable pursuant to clause (i)
above and the Trade Letter of Credit Fee payable pursuant to
clause (ii) above, the Borrower promises to pay to the Issuing
Lender for its own account without sharing by the other
Lenders (A) a letter of credit fronting fee of one-eighth
percent (1/8%) per annum on the average daily maximum amount
available to be drawn under outstanding Letters of Credit
payable quarterly in arrears with the Letter of Credit Fee,
and (B) customary charges from time to time of the Issuing
Lender with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings
under, such Letters of Credit (collectively, the "Issuing
Lender Fees").
3.6 CAPITAL ADEQUACY.
If any Lender has determined, after the date hereof, that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy), then,
upon notice from such Lender to the Borrower, the Borrower shall be obligated to
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction. Each determination by any such Lender of amounts
owing under this Section shall, absent manifest error, be conclusive and binding
on the parties hereto.
3.7 LIMITATION ON EURODOLLAR LOANS.
If on or prior to the first day of any Interest Period for any
Eurodollar Loan:
(a) the Administrative Agent determines (which
determination shall be conclusive) that by reason of circumstances
affecting the relevant market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination
shall be conclusive) and notify the Agent that the Eurodollar Rate will
not adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Borrower prompt notice thereof, and
so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Eurodollar
40
Loans, continue Eurodollar Loans, or to convert Base Rate Loans into Eurodollar
Loans and the Borrower shall, on the last day(s) of the then current Interest
Period(s) for the outstanding Eurodollar Loans, either prepay such Eurodollar
Loans or convert such Eurodollar Loans into Base Rate Loans in accordance with
the terms of this Credit Agreement.
3.8 ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of
or any change in any Requirement of Law or in the interpretation or application
thereof occurring after the Closing Date shall make it unlawful for any Lender
to make or maintain Eurodollar Loans as contemplated by this Credit Agreement,
(a) such Lender shall promptly give written notice of such circumstances to the
Borrower and the Administrative Agent (which notice shall be withdrawn whenever
such circumstances no longer exist), (b) the commitment of such Lender hereunder
to make Eurodollar Loans, continue Eurodollar Loans as such and convert a Base
Rate Loan to Eurodollar Loans, shall forthwith be canceled and, until such time
as it shall no longer be unlawful for such Lender to make or maintain Eurodollar
Loans, such Lender shall then have a commitment only to make a Base Rate Loan
when a Eurodollar Loan is requested and (c) such Lender's Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrower shall pay to
such Lender such amounts, if any, as may be required pursuant to Section 3.12.
3.9 REQUIREMENTS OF LAW.
If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with respect to any
Eurodollar Loans, its Notes, or its obligation to make Eurodollar
Loans, or change the basis of taxation of any amounts payable to such
Lender (or its Applicable Lending Office) under this Credit Agreement
or its Notes in respect of any Eurodollar Loans (other than taxes
imposed on the overall net income of such Lender by the jurisdiction in
which such Lender has its principal office or such Applicable Lending
Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement (other
than the Eurodollar Reserve Percentage utilized in the determination of
the Adjusted Eurodollar Rate) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities or
commitments of, such Lender (or its Applicable Lending Office),
including the Commitment of such Lender hereunder; or
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(iii) shall impose on such Lender (or its
Applicable Lending Office) or the London interbank market any other
condition affecting this Credit Agreement or its Notes or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, converting into, continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Credit Agreement or
its Notes with respect to any Eurodollar Loans, then the Borrower shall pay to
such Lender on demand such amount or amounts as will compensate such Lender for
such increased cost or reduction. If any Lender requests compensation by the
Borrower under this Section 3.9, the Borrower may, by notice to such Lender
(with a copy to the Administrative Agent), suspend the obligation of such Lender
to make or continue Eurodollar Loans, or to convert Base Rate Loans into
Eurodollar Loans, until the event or condition giving rise to such request
ceases to be in effect (in which case the provisions of Section 3.10 shall be
applicable); provided that such suspension shall not affect the right of such
Lender to receive the compensation so requested. Each Lender shall promptly
notify the Borrower and the Administrative Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Lender to
compensation pursuant to this Section 3.9 and will designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the reasonable judgment of
such Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this Section 3.9 shall furnish to the Borrower and the
Administrative Agent a statement setting forth the additional amount or amounts
to be paid to it hereunder which shall be conclusive in the absence of manifest
error. In determining such amount, such Lender may use any reasonable averaging
and attribution methods.
3.10 TREATMENT OF AFFECTED LOANS.
If the obligation of any Lender to make any Eurodollar Loan or to
continue, or to convert Base Rate Loans into, Eurodollar Loans shall be
suspended pursuant to Section 3.8 or 3.9 hereof, such Lender's Eurodollar Loans
shall be automatically converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for such Eurodollar Loans (or, in the case of a
conversion required by Section 3.8 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Administrative Agent) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in Section 3.8 or 3.9 hereof that gave rise to such conversion no
longer exist:
(a) to the extent that such Lender's Eurodollar Loans
have been so converted, all payments and prepayments of principal that
would otherwise be applied to such Lender's Eurodollar Loans shall be
applied instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or continued
by such Lender as Eurodollar Loans shall be made or continued instead
as Base Rate Loans, and all Base Rate Loans of such Lender that would
otherwise be converted into Eurodollar Loans shall remain as Base Rate
Loans.
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If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 3.8 or 3.9 hereof that gave
rise to the conversion of such Lender's Eurodollar Loans pursuant to this
Section 3.10 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Eurodollar Loans, to the extent necessary so that, after giving
effect thereto, all Loans held by the Lenders holding Eurodollar Loans and by
such Lender are held pro rata (as to principal amounts, interest rate basis, and
Interest Periods) in accordance with their respective Commitments.
3.11 TAXES.
(a) Any and all payments by any Credit Party to or for
the account of any Lender or the Administrative Agent hereunder or
under any other Credit Document shall be made free and clear of and
without deduction for any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender
and the Administrative Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the laws of
which such Lender (or its Applicable Lending Office) or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies,
imposts, deductions, charges, withholdings, and liabilities being
hereinafter referred to as "Taxes"). If any Credit Party shall be
required by law to deduct any Taxes from or in respect of any sum
payable under this Credit Agreement or any other Credit Document to any
Lender or the Administrative Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 3.11) such Lender or the Administrative Agent receives an
amount equal to the sum it would have received had no such deductions
been made, (ii) such Credit Party shall make such deductions, (iii)
such Credit Party shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable
law, and (iv) such Credit Party shall furnish to the Administrative
Agent, at its address referred to in Section 11.1, the original or a
certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any
payment made under this Credit Agreement or any other Credit Document
or from the execution or delivery of, or otherwise with respect to,
this Credit Agreement or any other Credit Document (hereinafter
referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section
3.11) paid by such Lender or the Administrative Agent (as the case may
be) and any liability (including penalties, interest, and expenses)
arising therefrom or with respect thereto.
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(d) Each Lender that is not a United States person under
Section 7701(a)(30) of the Code (a "Foreign Lender"), on or prior to
the date of its execution and delivery of this Credit Agreement in the
case of each Lender listed on the signature pages hereof and on or
prior to the date on which it becomes a Lender in the case of each
other Lender, and from time to time thereafter if requested in writing
by the Borrower or the Administrative Agent (but only so long as such
Lender remains lawfully able to do so), shall provide the Borrower and
the Administrative Agent with (i) Internal Revenue Service Form 1001 or
4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits
under an income tax treaty to which the United States is a party which
reduces the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this Credit Agreement
is effectively connected with the conduct of a trade or business in the
United States, (ii) Internal Revenue Service Form W-8 or W-9, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying that such Lender is
entitled to an exemption from or a reduced rate of tax on payments
pursuant to this Credit Agreement or any of the other Credit Documents.
(e) For any period with respect to which a Lender has
failed to provide the Borrower and the Administrative Agent with the
appropriate form pursuant to Section 3.11(d) (unless such failure is
due to a change in treaty, law, or regulation occurring subsequent to
the date on which a form originally was required to be provided), such
Lender shall not be entitled to indemnification under Section 3.11(a)
or 3.11(b) with respect to Taxes imposed by the United States;
provided, however, that should a Lender, which is otherwise exempt from
or subject to a reduced rate of withholding tax, become subject to
Taxes because of its failure to deliver a form required hereunder, the
Borrower shall take such steps as such Lender shall reasonably request
to assist such Lender to recover such Taxes.
(f) If any Credit Party is required to pay additional
amounts to or for the account of any Lender pursuant to this Section
3.11, then such Lender will agree to use reasonable efforts to change
the jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such
change, in the reasonable judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment
of Taxes, the applicable Credit Party shall furnish to the
Administrative Agent the original or a certified copy of a receipt
evidencing such payment.
(h) Without prejudice to the survival of any other
agreement of the Credit Parties hereunder, the agreements and
obligations of the Credit Parties contained in this Section 3.11 shall
survive the repayment of the Loans, LOC Obligations and other
obligations under the Credit Documents and the termination of the
Commitments hereunder.
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3.12 COMPENSATION.
Upon the request of any Lender, the Borrower shall pay to such Lender
such amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost, or expense (including loss of
anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or conversion of a
Eurodollar Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 9.2) on a date other than
the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason
(including, without limitation, the failure of any condition precedent
specified in Section 5 to be satisfied) to borrow, convert, continue,
or prepay a Eurodollar Loan on the date for such borrowing, conversion,
continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, continuation, or conversion under this Credit
Agreement.
With respect to Eurodollar Loans, such indemnification may include an amount
equal to the excess, if any, of (a) the amount of interest which would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of the applicable Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Eurodollar Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) over (b) the amount
of interest (as reasonably determined by such Lender) which would have accrued
to such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank Eurodollar market. The covenants of
the Borrower set forth in this Section 3.12 shall survive the repayment of the
Loans, LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments hereunder.
3.13 PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) Loans. Each Loan, each payment or (subject to the
terms of Section 3.3) prepayment of principal of any Loan or
reimbursement obligations arising from drawings under Letters of
Credit, each payment of interest on the Loans or reimbursement
obligations arising from drawings under Letters of Credit, each payment
of Unused Fees, each payment of the Standby Letter of Credit Fee, each
payment of the Trade Letter of Credit Fee, each reduction in
Commitments and each conversion or extension of any Loan, shall be
allocated pro rata among the Lenders in accordance with the respective
principal amounts of their outstanding Revolving Loans and
Participation Interests.
(b) Advances. No Lender shall be responsible for the
failure or delay by any other Lender in its obligation to make its
ratable share of a borrowing hereunder; provided, however, that the
failure of any Lender to fulfill its obligations hereunder shall not
relieve any other Lender of its obligations hereunder. Unless the
Borrower or any Lender has
45
notified the Administrative Agent, prior to the date any payment is
required to be made by it to the Administrative Agent hereunder, that
the Borrower or such Lender, as the case may be, will not make such
payment, the Administrative Agent may assume that the Borrower or such
Lender, as the case may be, has timely made such payment and may (but
shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the
extent that such payment was not in fact made to the Administrative
Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, each
Lender shall forthwith on demand repay to the Administrative
Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds,
together with interest thereon in respect of each day from and
including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available
funds at the Federal Funds Rate from time to time in effect;
and
(ii) if any Lender failed to make such payment, such
Lender shall forthwith on demand pay to the Administrative
Agent the amount thereof in immediately available funds,
together with interest thereon for the period from the date
such amount was made available by the Administrative Agent to
the Borrower to the date such amount is recovered by the
Administrative Agent (the "Compensation Period") at a rate per
annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's ratable
share of the applicable Revolving Loan. If such Lender does
not pay such amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent may make a demand
therefor upon the Borrower, and the Borrower shall pay such
amount to the Administrative Agent, together with interest
thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable Revolving
Loan. Nothing herein shall be deemed to relieve any Lender
from its obligation to fulfill its Commitment or to prejudice
any rights which the Administrative Agent or the Borrower may
have against any Lender as a result of any default by such
Lender hereunder.
A notice of the Administrative Agent to any Lender or
the Borrower with respect to any amount owing under this
subsection (c) shall be conclusive, absent manifest error.
3.14 SHARING OF PAYMENTS.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan, LOC Obligations or any other
obligation owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a secured
claim under Section 506 of Title 11 of the United States Code or other
46
security or interest arising from, or in lieu of, such secured claim, received
by such Lender under any applicable bankruptcy, insolvency or other similar law
or otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a Participation Interest in such Loans, LOC
Obligations and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable shares as
provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of a
Participation Interest theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to each Lender whose payment shall have been rescinded or otherwise restored.
The Borrower agrees that any Lender so purchasing such a Participation Interest
may, to the fullest extent permitted by law, exercise all rights of payment,
including setoff, banker's lien or counterclaim, with respect to such
Participation Interest as fully as if such Lender were a holder of such Loan,
LOC Obligations or other obligation in the amount of such Participation
Interest. Except as otherwise expressly provided in this Credit Agreement, if
any Lender or the Administrative Agent shall fail to remit to the Administrative
Agent or any other Lender an amount payable by such Lender or the Administrative
Agent to the Administrative Agent or such other Lender pursuant to this Credit
Agreement on the date when such amount is due, such payments shall be made
together with interest thereon for each date from the date such amount is due
until the date such amount is paid to the Administrative Agent or such other
Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.14 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.14 to share in the benefits of any recovery on such secured claim.
3.15 PAYMENTS, COMPUTATIONS, ETC.
(a) Except as otherwise specifically provided herein, all
payments hereunder shall be made to the Administrative Agent in Dollars
in immediately available funds, without recoupment, setoff, deduction,
counterclaim or withholding of any kind, at the Administrative Agent's
office specified in Schedule 2.1(a) not later than 2:00 p.m.
(Charlotte, North Carolina time) on the date when due. Payments
received after such time shall be deemed to have been received on the
next succeeding Business Day. The Administrative Agent may (but shall
not be obligated to) debit the amount of any such payment which is not
made by such time to any ordinary deposit account of the Borrower or
any other Credit Party maintained with the Administrative Agent (with
notice to the Borrower or such other Credit Party). The Borrower shall,
at the time it makes any payment under this Credit Agreement, specify
to the Administrative Agent the Loans, LOC Obligations, Fees, interest
or other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that it fails so to specify,
or if such application would be inconsistent with the terms hereof, the
Administrative Agent shall distribute such payment to the Lenders in
such manner as the Administrative Agent may determine to be appropriate
in respect of obligations owing by the Borrower hereunder,
47
subject to the terms of Section 3.13(a)). The Administrative Agent will
distribute such payments to such Lenders, if any such payment is
received prior to 2:00 p.m. (Charlotte, North Carolina time) on a
Business Day in like funds as received prior to the end of such
Business Day and otherwise the Administrative Agent will distribute
such payment to such Lenders on the next succeeding Business Day.
Whenever any payment hereunder shall be stated to be due on a day which
is not a Business Day, the due date thereof shall be extended to the
next succeeding Business Day (subject to accrual of interest and Fees
for the period of such extension), except that in the case of
Eurodollar Loans, if the extension would cause the payment to be made
in the next following calendar month, then such payment shall instead
be made on the next preceding Business Day. Except as expressly
provided otherwise herein, all computations of interest and fees shall
be made on the basis of actual number of days elapsed over a year of
360 days. Interest shall accrue from and include the date of borrowing,
but exclude the date of payment.
(b) Allocation of Payments After Event of Default.
Notwithstanding any other provisions 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 or in
respect of the Collateral 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;
FIFTH, to the payment of the outstanding principal amount of
the Credit Party Obligations (including the payment or cash
collateralization of the outstanding LOC Obligations);
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.
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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; (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; and (iii) to the extent that any amounts available
for distribution pursuant to clause "FIFTH" above are attributable to
the issued but undrawn amount of outstanding Letters of Credit, such
amounts shall be held by the Administrative Agent in a cash collateral
account and applied (A) first, to reimburse the Issuing Lender from
time to time for any drawings under such Letters of Credit and (B)
then, following the expiration of all Letters of Credit, to all other
obligations of the types described in clauses "FIFTH" and "SIXTH" above
in the manner provided in this Section 3.15(b).
3.16 EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts
evidencing each Loan made by such Lender to the Borrower from time to
time, including the amounts of principal and interest payable and paid
to such Lender from time to time under this Credit Agreement. Each
Lender will make reasonable efforts to maintain the accuracy of its
account or accounts and to promptly update its account or accounts from
time to time, as necessary.
(b) The Administrative Agent shall maintain the Register
pursuant to Section 11.3(c), and a subaccount for each Lender, in which
Register and subaccounts (taken together) shall be recorded (i) the
amount, type and Interest Period of each such Loan hereunder, (ii) the
amount of any principal or interest due and payable or to become due
and payable to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder from or for the account
of any Credit Party and each Lender's share thereof. The Administrative
Agent will make reasonable efforts to maintain the accuracy of the
subaccounts referred to in the preceding sentence and to promptly
update such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and
subaccounts maintained pursuant to subsection (b) of this Section 3.16
(and, if consistent with the entries of the Administrative Agent,
subsection (a)) shall be prima facie evidence of the existence and
amounts of the obligations of the Credit Parties therein recorded;
provided, however, that the failure of any Lender or the Administrative
Agent to maintain any such account, such Register or such subaccount,
as applicable, or any error therein, shall not in any manner affect the
obligation of the Credit Parties to repay the Credit Party obligations
owing to such Lender.
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SECTION 4
GUARANTY
4.1 THE GUARANTY.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Hedging Agreement, and the
Administrative Agent as hereinafter provided, as primary obligor and not as
surety, the prompt payment of the Credit Party Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise) strictly in accordance with the
terms thereof. The Guarantors hereby further agree that if any of the Credit
Party Obligations are not paid in full when due (whether at stated maturity, as
a mandatory prepayment, by acceleration, as a mandatory cash collateralization
or otherwise), the Guarantors will, jointly and severally, promptly pay the
same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Credit Party Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) in accordance with the terms of such extension
or renewal.
Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents or Hedging Agreements, the obligations of each
Guarantor hereunder shall be limited to an aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to avoidance
under Section 548 of the Bankruptcy Code or any comparable provisions of any
applicable state law.
4.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors under Section 4.1 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or
security for any of the Credit Party Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 4.2 that the
obligations of the Guarantors hereunder shall be absolute and unconditional
under any and all circumstances. Each Guarantor agrees that such Guarantor shall
have no right of subrogation, indemnity, reimbursement or contribution against
the Borrower or any other Guarantor for amounts paid under this Section 4 until
such time as the Lenders (and any Affiliates of Lenders entering into Hedging
Agreements) have been paid in full, all Commitments under this Credit Agreement
have been terminated and no Person or Governmental Authority shall have any
right to request any return or reimbursement of funds from the Lenders in
connection with monies received under the Credit Documents or Hedging
Agreements. Without limiting the generality of the foregoing, it is agreed that,
to the fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor hereunder
which shall remain absolute and unconditional as described above:
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(a) at any time or from time to time, without notice to
any Guarantor, the time for any performance of or compliance with any
of the Credit Party Obligations shall be extended, or such performance
or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of
any of the Credit Documents, any Hedging Agreement or any other
agreement or instrument referred to in the Credit Documents or Hedging
Agreements shall be done or omitted;
(c) the maturity of any of the Credit Party Obligations
shall be accelerated, or any of the Credit Party Obligations shall be
modified, supplemented or amended in any respect, or any right under
any of the Credit Documents, any Hedging Agreement or any other
agreement or instrument referred to in the Credit Documents or Hedging
Agreements shall be waived or any other guarantee of any of the Credit
Party Obligations or any security therefor shall be released, impaired
or exchanged in whole or in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of
the Credit Party Obligations shall fail to attach or be perfected; or
(e) any of the Credit Party Obligations shall be
determined to be void or voidable (including, without limitation, for
the benefit of any creditor of any Guarantor) or shall be subordinated
to the claims of any Person (including, without limitation, any
creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Administrative Agent or any Lender
exhaust any right, power or remedy or proceed against any Person under any of
the Credit Documents, any Hedging Agreement or any other agreement or instrument
referred to in the Credit Documents or Hedging Agreements, or against any other
Person under any other guarantee of, or security for, any of the Credit Party
Obligations.
4.3 REINSTATEMENT.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Credit Party Obligations is
rescinded or must be otherwise restored by any holder of any of the Credit Party
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees and expenses of counsel) incurred
by the Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
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4.4 CERTAIN ADDITIONAL WAIVERS.
Each Guarantor agrees that such Guarantor shall have no right of
recourse to security for the Credit Party Obligations, except through the
exercise of rights of subrogation pursuant to Section 4.2 and through the
exercise of rights of contribution pursuant to Section 4.6.
4.5 REMEDIES.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Credit Party Obligations may be declared to be
forthwith due and payable as provided in Section 9.2 (and shall be deemed to
have become automatically due and payable in the circumstances provided in said
Section 9.2) for purposes of Section 4.1 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing the Credit Party
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Credit Party
Obligations being deemed to have become automatically due and payable), the
Credit Party Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors for purposes of Section
4.1.
4.6 RIGHTS OF CONTRIBUTION.
The Guarantors hereby agree as among themselves that, if any Guarantor
shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other
Guarantor's Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.6 shall be subordinate
and subject in right of payment to the prior payment in full to the
Administrative Agent and the Lenders of the Guaranteed Obligations, and none of
the Guarantors shall exercise any right or remedy under this Section 4.6 against
any other Guarantor until payment and satisfaction in full of all of such
Guaranteed Obligations. For purposes of this Section 4.6, (a) "Guaranteed
Obligations" shall mean any obligations arising under the other provisions of
this Section 4; (b) "Excess Payment" shall mean the amount paid by any Guarantor
in excess of its Pro Rata Share of any Guaranteed Obligations; (c) "Pro Rata
Share" shall mean, for any Guarantor in respect of any payment of Guaranteed
Obligations, the ratio (expressed as a percentage) as of the date of such
payment of Guaranteed Obligations of (i) the amount by which the aggregate
present fair salable value of all of its assets and properties exceeds the
amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of all
of the Credit Parties exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of the Credit Parties hereunder) of the Credit
Parties; provided, however, that, for purposes of calculating the Pro Rata
Shares of the Guarantors in respect of any payment of Guaranteed Obligations,
any Guarantor that became a Guarantor subsequent to the date of any such payment
shall be deemed to have been a Guarantor on the date of such payment and the
financial information for such Guarantor as of the date such Guarantor became a
Guarantor shall be utilized for such Guarantor in connection with such payment;
and (d) "Contribution Share" shall mean, for any Guarantor in respect of any
Excess Payment made by
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any other Guarantor, the ratio (expressed as a percentage) as of the date of
such Excess Payment of (i) the amount by which the aggregate present fair
salable value of all of its assets and properties exceeds the amount of all
debts and liabilities of such Guarantor (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (ii) the amount by which the aggregate present fair
salable value of all assets and other properties of the Credit Parties other
than the maker of such Excess Payment exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Credit Parties) of the Credit
Parties other than the maker of such Excess Payment; provided, however, that,
for purposes of calculating the Contribution Shares of the Guarantors in respect
of any Excess Payment, any Guarantor that became a Guarantor subsequent to the
date of any such Excess Payment shall be deemed to have been a Guarantor on the
date of such Excess Payment and the financial information for such Guarantor as
of the date such Guarantor became a Guarantor shall be utilized for such
Guarantor in connection with such Excess Payment. This Section 4.6 shall not be
deemed to affect any right of subrogation, indemnity, reimbursement or
contribution that any Guarantor may have under applicable law against the
Borrower in respect of any payment of Guaranteed Obligations.
4.7 GUARANTEE OF PAYMENT; CONTINUING GUARANTEE.
The guarantee in this Section 4 is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Credit Party
Obligations whenever arising.
SECTION 5
CONDITIONS
5.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement and
to make the initial Loans or the Issuing Lender to issue the initial Letter of
Credit, whichever shall occur first, shall be subject to satisfaction of the
following conditions (in form and substance acceptable to the Lenders):
(a) Executed Credit Documents. Receipt by the
Administrative Agent of duly executed copies of: (i) this Credit
Agreement, (ii) the Notes and (iii) all other Credit Documents, each in
form and substance acceptable to the Administrative Agent in its sole
discretion.
(b) Corporate Documents. Receipt by the Administrative
Agent of the following:
(i) Charter Documents. Copies of the articles or
certificates of incorporation or other charter documents of
each Credit Party certified to be true and complete as of a
recent date by the appropriate Governmental Authority of the
state or other jurisdiction of its incorporation and certified
by a secretary or assistant secretary of such Credit Party to
be true and correct as of the Closing Date.
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(ii) Bylaws. A copy of the bylaws of each Credit
Party certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the
Board of Directors of each Credit Party approving and adopting
the Credit Documents to which it is a party, the transactions
contemplated therein and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary of
such Credit Party to be true and correct and in force and
effect as of the Closing Date.
(iv) Good Standing. Copies of certificates of
good standing, existence or its equivalent with respect to
each Credit Party certified as of a recent date by the
appropriate Governmental Authorities of the state or other
jurisdiction of incorporation and Tennessee and each other
jurisdiction in which the failure to so qualify and be in good
standing could have a Material Adverse Effect.
(v) Incumbency. An incumbency certificate of
each Credit Party certified by a secretary or assistant
secretary to be true and correct as of the Closing Date.
(c) Financial Statements. Receipt by the Administrative
Agent of (i) the consolidated and consolidating financial statements of
the Borrower and its Subsidiaries, including balance sheets and income
and cash flow statements for the fiscal year 2001 and audited by
nationally recognized independent public accountants and containing an
unqualified opinion of such firm that such statements present fairly
the consolidated and consolidating financial position of the Borrower
and its Subsidiaries and are prepared in conformity with GAAP and (ii)
such other information relating to the Borrower and its Subsidiaries as
the Administrative Agent may reasonably require in connection with the
structuring and syndication of credit facilities of the type described
herein.
(d) Opinions of Counsel. The Administrative Agent shall
have received a legal opinion in form and substance reasonably
satisfactory to the Administrative Agent dated as of the Closing Date
from counsel to the Credit Parties.
(e) Lien Searches. The Administrative Agent shall have
received with respect to the Borrower searches of Uniform Commercial
Code filings in Delaware, Tennessee and Texas, copies of the financing
statements on file in such jurisdictions and evidence that no Liens
exist other than Permitted Liens.
(f) Evidence of Insurance. Receipt by the Administrative
Agent of copies of insurance policies or certificates of insurance of
the Consolidated Parties evidencing liability and casualty insurance
meeting the requirements set forth in the Credit Documents.
(g) Material Adverse Effect. No material adverse change
shall have occurred since December 29, 2001 in the condition (financial
or otherwise), business, assets,
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liabilities, operations, management or prospects of the Consolidated
Parties taken as a whole.
(h) Litigation. There shall not exist any pending or
threatened action, suit, investigation or proceeding against a
Consolidated Party that could have a Material Adverse Effect.
(i) Officer's Certificates. The Administrative Agent
shall have received a certificate or certificates executed by the chief
financial officer of the Borrower as of the Closing Date stating that
(A) each Credit Party is in compliance with all existing financial
obligations, (B) all governmental, shareholder and third party consents
and approvals, if any, with respect to the Credit Documents and the
transactions contemplated thereby have been obtained, (C) no action,
suit, investigation or proceeding is pending or threatened in any court
or before any arbitrator or governmental instrumentality that purports
to affect any Credit Party or any transaction contemplated by the
Credit Documents, if such action, suit, investigation or proceeding
could have a Material Adverse Effect, and (D) immediately after giving
effect to this Credit Agreement, the other Credit Documents and all the
transactions contemplated therein to occur on such date, (1) each of
the Credit Parties is Solvent, (2) no Default or Event of Default
exists, (3) all representations and warranties contained herein and in
the other Credit Documents are true and correct in all material
respects, and (4) the Credit Parties are in compliance with each of the
financial covenants set forth in Section 7.11.
(j) Fees and Expenses. Payment by the Credit Parties of
all fees and expenses owed by them to the Lenders and the
Administrative Agent, including, without limitation, payment to the
Administrative Agent of the fees set forth in the Fee Letter.
(k) Other. Receipt by the Lenders of such other
documents, instruments, agreements or information as reasonably
requested by any Lender, including, but not limited to, information
regarding litigation, tax, accounting, labor, insurance, pension
liabilities (actual or contingent), real estate leases, material
contracts, debt agreements, property ownership and contingent
liabilities of the Consolidated Parties.
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligations of each Lender to make, convert or extend any Loan and
of the Issuing Lender to issue or extend any Letter of Credit (including the
initial Loans and the initial Letter of Credit) are subject to satisfaction of
the following conditions in addition to satisfaction on the Closing Date of the
conditions set forth in Section 5.1:
(a) The Borrower shall have delivered (i) in the case of
any Revolving Loan, an appropriate Notice of Borrowing or Notice of
Extension/Conversion or (ii) in the case of any Letter of Credit, the
Issuing Lender shall have received an appropriate request for issuance
in accordance with the provisions of Section 2.2(b);
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(b) The representations and warranties set forth in
Section 6 shall, subject to the limitations set forth therein, be true
and correct in all material respects as of such date (except for those
which expressly relate to an earlier date);
(c) There shall not have been commenced against any
Consolidated Party an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or any
case, proceeding or other action for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
for the winding up or liquidation of its affairs, and such involuntary
case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded;
(d) No Default or Event of Default shall exist and be
continuing either prior to or after giving effect thereto;
(e) No circumstances, events or conditions shall have
occurred since December 29, 2001 which would have a Material Adverse
Effect; and
(f) Immediately after giving effect to the making of such
Loan (and the application of the proceeds thereof) or to the issuance
of such Letter of Credit, as the case may be, (i) the sum of the
aggregate principal amount of outstanding Revolving Loans plus LOC
Obligations outstanding plus outstanding Swingline Loans shall not
exceed the Revolving Committed Amount and (ii) the LOC Obligations
shall not exceed the LOC Committed Amount.
The delivery of each Notice of Borrowing, each Notice of Extension/Conversion
and each request for a Letter of Credit pursuant to Section 2.2(b) shall
constitute a representation and warranty by the Credit Parties of the
correctness of the matters specified in subsections (b), (c), (d), (e) and (f)
above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Administrative Agent and
each Lender that:
6.1 FINANCIAL CONDITION.
The financial statements delivered to the Lenders pursuant to Section
5.1(c) and Section 7.1(a) and (b), (i) have been prepared in accordance with
GAAP and (ii) present fairly (on the basis disclosed in the footnotes to such
financial statements) the consolidated and consolidating financial condition,
results of operations and cash flows of the Consolidated Parties as of such date
and for such periods.
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6.2 NO MATERIAL CHANGE.
Since December 29, 2001, (a) there has been no development or event
relating to or affecting a Consolidated Party which has had or could reasonably
be expected to have a Material Adverse Effect and (b) except as otherwise
permitted under this Credit Agreement, no dividends or other distributions have
been declared, paid or made upon the Capital Stock in a Consolidated Party nor
has any of the Capital Stock in a Consolidated Party been redeemed, retired,
purchased or otherwise acquired for value.
6.3 ORGANIZATION AND GOOD STANDING; COMPLIANCE WITH LAW.
Each of the Consolidated Parties (a) is duly organized, validly
existing and is in good standing under the laws of the jurisdiction of its
incorporation or organization, (b) has the requisite power and authority to own
and operate all 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
to conduct business 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 except to the extent that the failure to so
qualify or be in good standing could not reasonably be expected to have a
Material Adverse Effect.
6.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each of the Credit Parties has the corporate or other necessary power
and authority, to make, deliver and perform the Credit Documents to which it is
a party, and in the case of the Borrower, to obtain extensions of credit
hereunder, and has taken all necessary corporate action to authorize the
borrowings and other extensions of credit on the terms and conditions of this
Credit Agreement and to authorize the execution, delivery and performance of the
Credit Documents to which it is a party. No consent or authorization of, filing
with, notice to or other similar act by or in respect of, any Governmental
Authority or any other Person is required to be obtained or made by or on behalf
of any Credit Party in connection with the borrowings or other extensions of
credit hereunder or with the execution, delivery, performance, validity or
enforceability of the Credit Documents to which such Credit Party is a party.
This Credit Agreement has been, and each other Credit Document to which any
Credit Party is a party will be, duly executed and delivered on behalf of the
Credit Parties. This Credit Agreement constitutes, and each other Credit
Document to which any Credit Party is a party when executed and delivered will
constitute, a legal, valid and binding obligation of such Credit Party
enforceable against such party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
6.5 NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by such Credit Party will (a)
violate or conflict with any provision of its articles or certificate of
incorporation or bylaws or other organizational or governing documents of such
57
Person, (b) violate, contravene or materially conflict with any Requirement of
Law or any other law, regulation (including, without limitation, Regulation U or
Regulation X), order, writ, judgment, injunction, decree or permit applicable to
it, (c) violate, contravene or conflict with contractual provisions of, or cause
an event of default under, any indenture, loan agreement, mortgage, deed of
trust, contract or other agreement or instrument to which it is a party or by
which it may be bound, the violation of which could have a Material Adverse
Effect, or (d) result in or require the creation of any Lien upon or with
respect to its properties. No Default or Event of Default has occurred and is
continuing.
6.6 OWNERSHIP.
Each Consolidated Party is the owner of, and has good and marketable
title to, all of its respective assets and none of such assets is subject to any
Lien other than Permitted Liens.
6.7 INDEBTEDNESS.
Except as otherwise permitted under Section 8.1, the Consolidated
Parties have no Indebtedness.
6.8 LITIGATION.
There are no actions, suits or legal, equitable, arbitration or
administrative proceedings, pending or, to the knowledge of any Credit Party,
threatened against any Consolidated Party which could reasonably be expected to
have a Material Adverse Effect.
6.9 TAXES.
Each Consolidated Party 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. No
Credit Party is aware as of the Closing Date of any proposed tax assessments
against it or any Consolidated Party.
6.10 COMPLIANCE WITH LAW.
Each Consolidated Party is in compliance with all Requirements of Law
and all other laws, rules, regulations, orders and decrees (including without
limitation Environmental Laws) applicable to it, or to its properties, unless
such failure to comply could not have a Material Adverse Effect.
6.11 ERISA.
(a) During the five-year period prior to the date on which
this representation is made or deemed made: (i) no ERISA Event has
occurred, and, to the best knowledge of the
58
Credit Parties, no event or condition has occurred or exists as a
result of which any ERISA Event could reasonably be expected to occur,
with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the
Code, whether or not waived, has occurred with respect to any Plan;
(iii) each Plan has been maintained, operated, and funded in compliance
with its own terms and in material compliance with the provisions of
ERISA, the Code, and any other applicable federal or state laws; and
(iv) no lien in favor of the PBGC or a Plan has arisen or is reasonably
likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit
liabilities" (as defined in Section 4001(a)(16) of ERISA), whether or
not vested, under each Single Employer Plan, as of the last annual
valuation date prior to the date on which this representation is made
or deemed made (determined, in each case, in accordance with Financial
Accounting Standards Board Statement 87, utilizing the actuarial
assumptions used in such Plan's most recent actuarial valuation
report), did not exceed as of such valuation date the fair market value
of the assets of such Plan.
(c) Neither any Consolidated Party nor any ERISA
Affiliate has incurred, or, to the best knowledge of the Credit
Parties, could be reasonably expected to incur, any withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer
Plan. Neither any Consolidated Party nor any ERISA Affiliate would
become subject to any withdrawal liability under ERISA if any
Consolidated Party or any ERISA Affiliate were to withdraw completely
from all Multiemployer Plans and Multiple Employer Plans as of the
valuation date most closely preceding the date on which this
representation is made or deemed made. Neither any Consolidated Party
nor any ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization (within the meaning of Section
4241 of ERISA), is insolvent (within the meaning of Section 4245 of
ERISA), or has been terminated (within the meaning of Title IV of
ERISA), and no Multiemployer Plan is, to the best knowledge of the
Credit Parties, reasonably expected to be in reorganization, insolvent,
or terminated.
(d) No prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility has occurred with respect to a Plan which has
subjected or may subject any Consolidated Party or any ERISA Affiliate
to any liability under Sections 406, 409, 502(i), or 502(l) of ERISA or
Section 4975 of the Code, or under any agreement or other instrument
pursuant to which any Consolidated Party or any ERISA Affiliate has
agreed or is required to indemnify any Person against any such
liability.
(e) Neither any Consolidated Party nor any ERISA
Affiliates has any material liability with respect to "expected
post-retirement benefit obligations" within the meaning of the
Financial Accounting Standards Board Statement 106. Each Plan which is
a welfare plan (as defined in Section 3(1) of ERISA) to which Sections
601-609 of ERISA and Section 4980B of the Code apply has been
administered in compliance in all material respects of such sections.
59
(f) Neither the execution and delivery of this Credit
Agreement nor the consummation of the financing transactions
contemplated thereunder will involve any transaction which is subject
to the prohibitions of Sections 404, 406 or 407 of ERISA or in
connection with which a tax could be imposed pursuant to Section 4975
of the Code. The representation by the Credit Parties in the preceding
sentence is made in reliance upon and subject to the accuracy of the
Lenders' representation in Section 11.15 with respect to their source
of funds and is subject, in the event that the source of the funds used
by the Lenders in connection with this transaction is an insurance
company's general asset account, to the application of Prohibited
Transaction Class Exemption 95-60, 60 Fed. Reg. 35,925 (1995),
compliance with the regulations issued under Section 401(c)(1)(A) of
ERISA, or the issuance of any other prohibited transaction exemption or
similar relief, to the effect that assets in an insurance company's
general asset account do not constitute assets of an "employee benefit
plan" within the meaning of Section 3(3) of ERISA of a "plan" within
the meaning of Section 4975(e)(1) of the Code.
6.12 SUBSIDIARIES.
Set forth on Schedule 6.12 is a complete and accurate list of all
Subsidiaries of each Consolidated Party. Information on Schedule 6.12 includes
jurisdiction of incorporation, the number of shares of each class of Capital
Stock outstanding, the number and percentage of outstanding shares of each class
owned (directly or indirectly) by such Credit Party; and the number and effect,
if exercised, of all outstanding options, warrants, rights of conversion or
purchase and all other similar rights with respect thereto. The outstanding
Capital Stock of all such Subsidiaries is validly issued, fully paid and
non-assessable and is owned by each such Consolidated Party, directly or
indirectly, free and clear of all Liens. Other than as set forth in Schedule
6.12, no Subsidiary has outstanding any securities convertible into or
exchangeable for its Capital Stock nor does any such Person have outstanding any
rights to subscribe for or to purchase or any options for the purchase of, or
any agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to its Capital Stock.
Schedule 6.12 may be updated from time to time by the Borrower by giving written
notice thereof to the Administrative Agent.
6.13 GOVERNMENTAL REGULATIONS, ETC.
(a) No part of the Letters of Credit or proceeds of the
Loans will be used, directly or indirectly, in a manner that would
constitute a violation of Regulation T, Regulation U or Regulation X.
"Margin stock" within the meaning of Regulation U does not constitute
more than 25% of the value of the consolidated assets of the
Consolidated Parties. None 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. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each
Lender a statement to the effect of the foregoing sentences in
conformity with the requirements of FR Form U-1 referred to in
Regulation U.
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(b) No Consolidated Party is subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act
or the Investment Company Act of 1940, each as amended. In addition, no
Consolidated Party 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.
(c) No director, executive officer or principal
shareholder of any Consolidated Party is a director, executive officer
or principal shareholder of any Lender. For the purposes hereof the
terms "director", "executive officer" and "principal shareholder" (when
used with reference to any Lender) have the respective meanings
assigned thereto in Regulation O issued by the Board of Governors of
the Federal Reserve System.
(d) Each Consolidated Party has obtained and holds in
full force and effect, all franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of
way and other rights, consents and approvals which are necessary for
the ownership of its respective Property and to the conduct of its
respective businesses as presently conducted.
(e) No Consolidated Party is in violation of any
applicable statute, regulation or ordinance of the United States of
America, or of any state, city, town, municipality, county or any other
jurisdiction, or of any agency thereof (including without limitation,
environmental laws and regulations), which violation could have a
Material Adverse Effect.
(f) Each Consolidated Party is current with all material
reports and documents, if any, required to be filed with any state or
federal securities commission or similar securities agency and is in
full compliance in all material respects with all applicable rules and
regulations of such commissions.
6.14 PURPOSE OF LOANS AND LETTERS OF CREDIT.
The proceeds of the Loans hereunder shall be used solely by the
Borrower (i) for working capital, (ii) for general corporate purposes
(including, without limitation, the repurchase by the Borrower of Capital Stock
of the Borrower), (iii) to make Consolidated Capital Expenditures and (iv) to
refinance existing Indebtedness of the Borrower. The Letters of Credit shall be
used only for or in connection with appeal bonds, reimbursement obligations
arising in connection with surety and reclamation bonds, reinsurance, domestic
or international trade transactions and obligations not otherwise aforementioned
relating to transactions entered into by the applicable account party in the
ordinary course of business.
6.15 ENVIRONMENTAL MATTERS.
Except as would not have or be reasonably expected to have a Material
Adverse Effect:
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(a) Each of the facilities and properties owned, leased
or operated by the Consolidated Parties (the "Properties") and all
operations at the Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any Environmental Law
with respect to the Properties or the businesses operated by the
Consolidated Parties (the "Businesses"), and there are no conditions
relating to the Businesses or Properties that could give rise to
liability under any applicable Environmental Laws.
(b) None of the Properties contains, or has previously
contained, any Materials of Environmental Concern at, on or under the
Properties in amounts or concentrations that constitute or constituted
a violation of, or could give rise to liability under, Environmental
Laws.
(c) No Consolidated Party has received any written or
verbal notice of, or inquiry from any Governmental Authority regarding,
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
Businesses, nor does any Consolidated Party have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties, or generated, treated,
stored or disposed of at, on or under any of the Properties or any
other location, in each case by or on behalf of any Consolidated Party
in violation of, or in a manner that could give rise to liability
under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or
administrative action is pending or, to the best knowledge of any
Credit Party, threatened, under any Environmental Law to which any
Consolidated Party is or will be named as a party, nor are there any
consent decrees or other decrees, consent orders, administrative orders
or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the
Consolidated Parties, the Properties or the Businesses.
(f) 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 (including, without
limitation, disposal) of any Consolidated Party in connection with the
Properties or otherwise in connection with the Businesses, in violation
of or in amounts or in a manner that could give rise to liability under
Environmental Laws.
6.16 INTELLECTUAL PROPERTY.
Each Consolidated Party owns, or has the legal right to use, all
trademarks, tradenames, copyrights, technology, know-how and processes (the
"Intellectual Property") necessary for each of them to conduct its business as
currently conducted except for those the failure to own or have such legal right
to use could not have a Material Adverse Effect. No claim has been asserted and
is pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does any Credit Party know of any
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such claim, and to the Credit Parties' knowledge the use of such Intellectual
Property by any Consolidated Party does not infringe on the rights of any
Person, except for such claims and infringements that, in the aggregate, could
not have a Material Adverse Effect.
6.17 SOLVENCY.
Each Consolidated Party is and, after consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
6.18 INVESTMENTS.
All Investments of each Consolidated Party are Permitted Investments.
6.19 LOCATION OF ASSETS.
Set forth on Schedule 6.19 is (a) the chief executive office and
principal place of business of each Consolidated Party as of the Closing Date
and (b) the jurisdiction of incorporation or formation of each Consolidated
Party.
6.20 DISCLOSURE.
Neither this Credit Agreement nor any financial statements delivered to
the Lenders nor any other document, certificate or statement furnished to the
Lenders by or on behalf of any Consolidated Party in connection with the
transactions contemplated hereby contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained therein or herein not misleading.
6.21 NO BURDENSOME RESTRICTIONS.
No Consolidated Party 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.
6.22 BROKERS' FEES.
None of the Borrower or any of its Subsidiaries has any obligation to
any Person in respect of any finder's, broker's, investment banking or other
similar fee in connection with any of the transactions contemplated under the
Credit Documents.
6.23 LABOR MATTERS.
(a) Except as set forth on Schedule 6.23, there are no collective
bargaining agreements or Multiemployer Plans covering the employees of a
Consolidated Party, and (b) none of the Consolidated Parties (i) has suffered
any strikes, walkouts, work stoppages or other material labor
63
difficulty within the last five years, or (ii) has knowledge of any potential or
pending strike, walkout or work stoppage.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that, so long as this
Credit Agreement is in effect or any amounts payable hereunder or under any
other Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:
7.1 FINANCIAL STATEMENTS.
The Credit Parties will furnish, or cause to be furnished, to the
Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available,
and in any event within 90 days after the close of each fiscal year of
the Consolidated Parties, the consolidated and consolidating balance
sheet and income statement of the Consolidated Parties, as of the end
of such fiscal year, together with related consolidated and
consolidating statements of operations and retained earnings and of
cash flows for such fiscal year, setting forth in comparative form
consolidated and consolidating figures for the preceding fiscal year,
all such financial information described above to be in reasonable form
and detail and audited by independent certified public accountants of
recognized national standing reasonably acceptable to the
Administrative Agent and whose opinion shall be to the effect that such
financial statements have been prepared in accordance with GAAP (except
for changes with which such accountants concur) and shall not be
limited as to the scope of the audit or qualified in any manner.
(b) Quarterly Financial Statements. As soon as available,
and in any event within 45 days after the close of each fiscal quarter
of the Consolidated Parties (other than the fourth fiscal quarter, in
which case 90 days after the end thereof) a consolidated and
consolidating balance sheet and income statement of the Consolidated
Parties, as of the end of such fiscal quarter, together with related
consolidated and consolidating statements of operations and retained
earnings and of cash flows for such fiscal quarter, in each case
setting forth in comparative form consolidated and consolidating
figures for the corresponding period of the preceding fiscal year, all
such financial information described above to be in reasonable form and
detail and reasonably acceptable to the Administrative Agent, and
accompanied by a certificate of the chief financial officer of the
Borrower to the effect that such quarterly financial statements fairly
present in all material respects the financial condition of the
Consolidated Parties and have been prepared in accordance with GAAP,
subject to changes resulting from audit and normal year-end audit
adjustments.
(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b) above,
a certificate of the chief financial officer of
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the Borrower substantially in the form of Exhibit 7.1(c), (i)
demonstrating compliance with the financial covenants contained in
Section 7.11 by calculation thereof as of the end of each such fiscal
period and (ii) stating that no Default or Event of Default exists, or
if any Default or Event of Default does exist, specifying the nature
and extent thereof and what action the Credit Parties propose to take
with respect thereto.
(d) Annual Budgets. If requested by the Administrative
Agent, the Borrower shall promptly provide the Administrative Agent and
the Lenders with a budget of the Consolidated Parties for the next
fiscal year containing, among other things, pro forma financial
statements for such fiscal year.
(e) Accountant's Certificate. Within the period for
delivery of the annual financial statements provided in Section 7.1(a),
a certificate of the accountants conducting the annual audit stating
that they have reviewed this Credit Agreement and stating further
whether, in the course of their audit, they have become aware of any
Default or Event of Default and, if any such Default or Event of
Default exists, specifying the nature and extent thereof.
(f) Auditor's Reports. Promptly upon receipt thereof, a
copy of any other report or "management letter" submitted by
independent accountants to any Consolidated Party in connection with
any annual, interim or special audit of the books of such Person.
(g) Reports. Promptly upon transmission or receipt
thereof, (i) copies of any filings and registrations with, and reports
to or from, the Securities and Exchange Commission, or any successor
agency, and copies of all financial statements, proxy statements,
notices and reports as any Consolidated Party shall send to its
shareholders or to a holder of any Indebtedness owed by any
Consolidated Party in its capacity as such a holder and (ii) upon the
request of the Administrative Agent, all reports and written
information to and from the United States Environmental Protection
Agency, or any state or local agency responsible for environmental
matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health and
safety matters, or any successor agencies or authorities concerning
environmental, health or safety matters.
(h) Notices. Upon obtaining knowledge thereof, the Credit
Parties will give written notice to the Administrative Agent
immediately of (i) the occurrence of an event or condition consisting
of a Default or Event of Default, specifying the nature and existence
thereof and what action the Credit Parties propose to take with respect
thereto, and (ii) the occurrence of any of the following with respect
to any Consolidated Party (A) the pendency or commencement of any
litigation, arbitral or governmental proceeding against such Person
which if adversely determined is likely to have a Material Adverse
Effect, (B) the institution of any proceedings against such Person with
respect to, or the receipt of notice by such Person of potential
liability or responsibility for violation, or alleged violation of any
federal, state or local law, rule or regulation, including but not
limited to, Environmental Laws, the violation of which could reasonably
be expected to have a Material Adverse Effect, or (C) any notice or
determination concerning the imposition of any withdrawal
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liability by a Multiemployer Plan against such Person or any ERISA
Affiliate, the determination that a Multiemployer Plan is, or is
expected to be, in reorganization within the meaning of Title IV of
ERISA or the termination of any Plan.
(i) ERISA. Upon obtaining knowledge thereof, the Credit
Parties will give written notice to the Administrative Agent promptly
(and in any event within five business days) of: (i) of any event or
condition, including, but not limited to, any Reportable Event, that
constitutes, or might reasonably lead to, an ERISA Event; (ii) with
respect to any Multiemployer Plan, the receipt of notice as prescribed
in ERISA or otherwise of any withdrawal liability assessed against the
Credit Parties or any ERISA Affiliates, or of a determination that any
Multiemployer Plan is in reorganization or insolvent (both within the
meaning of Title IV of ERISA); (iii) the failure to make full payment
on or before the due date (including extensions) thereof of all amounts
which any Consolidated Party or any ERISA Affiliate is required to
contribute to each Plan pursuant to its terms and as required to meet
the minimum funding standard set forth in ERISA and the Code with
respect thereto; or (iv) any change in the funding status of any Plan
that could have a Material Adverse Effect, together with a description
of any such event or condition or a copy of any such notice and a
statement by the chief financial officer of the Borrower briefly
setting forth the details regarding such event, condition, or notice,
and the action, if any, which has been or is being taken or is proposed
to be taken by the Credit Parties with respect thereto. Promptly upon
request, the Credit Parties shall furnish the Administrative Agent and
the Lenders with such additional information concerning any Plan as may
be reasonably requested, including, but not limited to, copies of each
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of Section 3(39)
of ERISA).
(j) Other Information. With reasonable promptness upon
any such request, such other information regarding the business,
properties or financial condition of any Consolidated Party as the
Administrative Agent or the Required Lenders may reasonably request.
7.2 PRESERVATION OF EXISTENCE AND FRANCHISES.
Each Credit Party will, and will cause each of its Subsidiaries to, do
all things necessary to preserve and keep in full force and effect its
existence, rights, franchises and authority.
7.3 BOOKS AND RECORDS.
Each Credit Party will, and will cause each of its Subsidiaries to,
keep complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of GAAP (including the establishment
and maintenance of appropriate reserves).
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7.4 COMPLIANCE WITH LAW.
Each Credit Party will, and will cause each of its Subsidiaries to,
comply with all laws, rules, regulations and orders, and all applicable
restrictions imposed by all Governmental Authorities, applicable to it and its
Property if noncompliance with any such law, rule, regulation, order or
restriction could have a Material Adverse Effect.
7.5 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each Credit Party will, and will cause each of its Subsidiaries to, pay
and discharge (a) all taxes, assessments and governmental charges or levies
imposed upon it, or upon its income or profits, or upon any of its properties,
before they shall become delinquent, (b) all lawful claims (including claims for
labor, materials and supplies) which, if unpaid, might give rise to a Lien upon
any of its properties, and (c) except as prohibited hereunder, all of its other
Indebtedness as it shall become due; provided, however, that no Consolidated
Party shall be required to pay any such tax, assessment, charge, levy, claim or
Indebtedness which is being contested in good faith by appropriate proceedings
and as to which adequate reserves therefor have been established in accordance
with GAAP, unless the failure to make any such payment (i) could give rise to an
immediate right to foreclose on a Lien securing such amounts or (ii) could have
a Material Adverse Effect.
7.6 INSURANCE.
Each Credit Party will, and will cause each of its Subsidiaries to, at
all times maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) in such amounts, covering such risks and liabilities and
with such deductibles or self-insurance retentions as are in accordance with
normal industry practice. The present insurance coverage of the Consolidated
Parties is outlined as to carrier, policy number, expiration date, type and
amount on Schedule 7.6.
7.7 MAINTENANCE OF PROPERTY.
Each Credit Party will, and will cause each of its Subsidiaries to,
maintain and preserve its properties and equipment material to the conduct of
its business in good repair, working order and condition, normal wear and tear
and casualty and condemnation excepted, and will make, or cause to be made, in
such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as may
be needed or proper, to the extent and in the manner customary for companies in
similar businesses.
7.8 PERFORMANCE OF OBLIGATIONS.
Each Credit Party will, and will cause each of its Subsidiaries to,
perform in all material respects all of its obligations under the terms of all
material agreements, indentures, mortgages, security agreements or other debt
instruments to which it is a party or by which it is bound.
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7.9 USE OF PROCEEDS.
The Borrower will use the proceeds of the Loans and will use the
Letters of Credit solely for the purposes set forth in Section 6.14.
7.10 AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours, each Credit
Party will, and will cause each of its Subsidiaries to, permit representatives
appointed by the Administrative Agent, including, without limitation,
independent accountants, agents, attorneys, and appraisers to visit and inspect
its property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agent or its
representatives to investigate and verify the accuracy of information provided
to the Lenders and to discuss all such matters with the officers, employees and
representatives of such Person.
7.11 FINANCIAL COVENANTS.
(a) Current Ratio. At all times the Current Ratio shall
be greater than or equal to 1.1 to 1.0.
(b) Fixed Charge Coverage Ratio. The Fixed Charge
Coverage Ratio, as of the last day of each fiscal quarter of the
Borrower, shall be greater than or equal to 1.25 to 1.0;
(c) Leverage Ratio. The Leverage Ratio, as of the last
day of each fiscal quarter of the Borrower occurring during each of the
periods set forth below, shall be less than or equal to the ratio set
forth opposite such period:
Period Ratio
------ -----
From the Closing Date through December 31, 2003 4.25 to 1.0
From January 1, 2004 through December 31, 2004 4.0 to 1.0
From January 1, 2005 and thereafter 3.75 to 1.0
(d) Net Worth. Net Worth shall at all times be greater
than or equal to $178,000,000 minus the amount of Permitted Stock
Repurchases made subsequent to the Closing Date plus (on a cumulative
basis as of the end of each fiscal quarter of the Borrower, commencing
with the fiscal quarter ending September 30, 2002) an amount equal to
50% of Consolidated Net Income for the fiscal quarter then ended
(without deductions for any losses) plus 100% of the Net Cash Proceeds
from any Equity Issuance subsequent to the Closing Date.
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7.12 ADDITIONAL CREDIT PARTIES.
As soon as practicable and in any event within 30 days after any Person
becomes a Subsidiary of any Credit Party, the Borrower shall provide the
Administrative Agent with written notice thereof setting forth information in
reasonable detail describing all of the assets of such Person and shall if such
Person is a Domestic Subsidiary of a Credit Party, cause such Person to execute
a Joinder Agreement in substantially the same form as Exhibit 7.12 and cause
such Person to deliver such other documentation as the Administrative Agent may
reasonably request in connection with the foregoing, including, without
limitation, certified resolutions and other organizational and authorizing
documents of such Person, and favorable opinions of counsel to such Person all
in form, content and scope reasonably satisfactory to the Administrative Agent.
7.13 ENVIRONMENTAL LAWS.
(a) The Consolidated Parties shall comply in all material
respects with, and take reasonable actions 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 reasonable actions 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 would not reasonably be
expected to have a Material Adverse Effect;
(b) The Consolidated Parties shall 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 failure to do or the pendency of such
proceedings would not reasonably be expected to have a Material Adverse
Effect; and
(c) The Consolidated Parties shall defend, indemnify and
hold harmless the Administrative Agent and the Lenders, and their
respective employees, agents, officers and directors, 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
Borrower or any of its Subsidiaries or the 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 Loans and all other amounts payable
hereunder, and termination of the Commitments.
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SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that, so long as this
Credit Agreement is in effect or any amounts payable hereunder or under any
other Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:
8.1 INDEBTEDNESS.
The Credit Parties will not permit any Consolidated Party to contract,
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and
the other Credit Documents;
(b) purchase money Indebtedness (including obligations in
respect of Capital Leases) hereafter incurred by the Borrower to
finance the purchase of fixed assets provided that (i) the total of all
such Indebtedness shall not exceed an aggregate principal amount of
$5,000,000 at any one time outstanding; (ii) such Indebtedness when
incurred shall not exceed the purchase price of the asset(s) financed;
and (iii) no such Indebtedness shall be refinanced for a principal
amount in excess of the principal balance outstanding thereon at the
time of such refinancing;
(c) Indebtedness of the Borrower set forth in Schedule
8.1 (but not including any renewals, refinancings or extensions
thereof);
(d) obligations of the Borrower in respect of Hedging
Agreements entered into in order to manage existing or anticipated
interest rate or exchange rate risks and not for speculative purposes;
(e) intercompany Indebtedness arising out of loans,
advances and Guaranty Obligations permitted under Section 8.6;
(f) other unsecured Indebtedness of the Borrower and its
Subsidiaries; provided, that (i) such Indebtedness (together with the
aggregate consideration received for all Sale and Leaseback
Transactions entered into by the Borrower and its Subsidiaries during
the term of this Credit Agreement) shall not exceed an aggregate
principal amount of $70,000,000 at any one time outstanding and (ii) no
part of the principal amount of such Indebtedness shall have a maturity
date earlier than 90 days following the Maturity Date; and
(g) unsecured Indebtedness of the Borrower under the
SunTrust Loan Agreement in an aggregate principal amount not to exceed
$6,607,932 at any one time outstanding.
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8.2 LIENS.
The Credit Parties will not permit any Consolidated Party to contract,
create, incur, assume or permit to exist any Lien with respect to any of its
Property, whether now owned or after acquired, except for Permitted Liens.
8.3 NATURE OF BUSINESS.
The Credit Parties will not permit any Consolidated Party to
substantively alter the character or conduct of the business conducted by such
Person as of the Closing Date.
8.4 CONSOLIDATION, MERGER, DISSOLUTION, ETC.
The Credit Parties will not permit any Consolidated Party to enter into
any transaction of merger or consolidation or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution); provided that,
notwithstanding the foregoing provisions of this Section 8.4, (a) the Borrower
may merge or consolidate with any of its Subsidiaries provided that (i) the
Borrower shall be the continuing or surviving corporation and (ii) after giving
effect to such transaction, no Default or Event of Default exists, (b) any
Credit Party other than the Borrower may merge or consolidate with any other
Credit Party other than the Borrower provided that after giving effect to such
transaction, no Default or Event of Default exists, (c) any Consolidated Party
which is not a Credit Party may be merged or consolidated with or into any
Credit Party provided that (i) such Credit Party shall be the continuing or
surviving corporation and (ii) after giving effect to such transaction, no
Default or Event of Default exists, and (d) any Consolidated Party which is not
a Credit Party may be merged or consolidated with or into any other Consolidated
Party which is not a Credit Party provided that, after giving effect to such
transaction, no Default or Event of Default exists.
8.5 ASSET DISPOSITIONS.
The Credit Parties will not permit any Consolidated Party to sell,
lease, transfer or otherwise dispose of any Property other than (a) the sale of
inventory in the ordinary course of business for fair consideration, (b) the
sale or disposition of machinery and equipment no longer used or useful in the
conduct of such Person's business, (c) the sale, lease, transfer or other
disposition of Property to any Credit Party in the ordinary course of business,
(d) Sale and Leaseback Transactions permitted by Section 8.13 and (e) other
sales of assets of the Consolidated Parties having a net book value not to
exceed $12,000,000 in the aggregate during the term of this Credit Agreement.
8.6 INVESTMENTS.
The Credit Parties will not permit any Consolidated Party to make
Investments in or to any Person, except for Permitted Investments.
8.7 RESTRICTED PAYMENTS.
The Credit Parties will not permit any Consolidated Party to, directly
or indirectly, declare, order, make or set apart any sum for or pay any
Restricted Payment, except (a) to make dividends
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payable solely in the same class of Capital Stock of such Person, (b) to make
dividends or other distributions payable to the Borrower (directly or indirectly
through Subsidiaries) and (c) any Permitted Stock Repurchase.
8.8 PREPAYMENTS OF INDEBTEDNESS, ETC.
The Credit Parties will not permit any Consolidated Party to (a) after
the issuance thereof, amend or modify (or permit the amendment or modification
of) any of the terms of any Indebtedness if such amendment or modification would
add or change any terms in a manner adverse to the issuer of such Indebtedness,
or shorten the final maturity or average life to maturity or require any payment
to be made sooner than originally scheduled or increase the interest rate
applicable thereto or change any subordination provision thereof, or (b) make
(or give any notice with respect thereto) any voluntary or optional payment or
prepayment or redemption or acquisition for value of (including without
limitation, by way of depositing money or securities with the trustee with
respect thereto before due for the purpose of paying when due), refund,
refinance or exchange of any other Indebtedness.
8.9 TRANSACTIONS WITH AFFILIATES.
Except as set forth on Schedule 8.9, the Credit Parties will not permit
any Consolidated Party to enter into or permit to exist any transaction or
series of transactions with any officer, director, shareholder, Subsidiary or
Affiliate of such Person other than (a) normal compensation and reimbursement of
expenses of officers and directors and (b) except as otherwise specifically
limited in this Credit Agreement, other transactions which are entered into in
the ordinary course of such Person's business on terms and conditions
substantially as favorable to such Person as would be obtainable by it in a
comparable arms-length transaction with a Person other than an officer,
director, shareholder, Subsidiary or Affiliate.
8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
The Credit Parties will not permit any Consolidated Party to (a) change
its fiscal year or (b) amend, modify or change its articles of incorporation (or
corporate charter or other similar organizational document) or bylaws (or other
similar document) in a manner that would adversely affect the rights of the
Lenders.
8.11 LIMITATION ON RESTRICTED ACTIONS.
The Credit Parties will not permit any Consolidated Party to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or 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
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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 8.1(b) or the Capital Leases described on Schedule
8.1, provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith or (iv) the
SunTrust Loan Agreement.
8.12 OWNERSHIP OF SUBSIDIARIES.
Notwithstanding any other provisions of this Credit Agreement to the
contrary, the Credit Parties will not permit any Consolidated Party to (i)
permit any Person (other than the Borrower or any Wholly-Owned Subsidiary of the
Borrower) to own any Capital Stock of any Subsidiary of the Borrower, (ii)
permit any Subsidiary of the Borrower to issue Capital Stock (except to the
Borrower or to a Wholly-Owned Subsidiary of the Borrower), (iii) permit, create,
incur, assume or suffer to exist any Lien thereon, in each case except (A) to
qualify directors where required by applicable law or to satisfy other
requirements of applicable law with respect to the ownership of Capital Stock of
Foreign Subsidiaries or (B) for Permitted Liens and (iv) notwithstanding
anything to the contrary contained in clause (ii) above, permit any Subsidiary
of the Borrower to issue any shares of preferred Capital Stock.
8.13 SALE LEASEBACKS.
The Credit Parties will not permit any Consolidated Party to enter into
any Sale and Leaseback Transactions except for those Sale and Leaseback
Transactions entered into subsequent to the Closing Date, which together with
the outstanding Indebtedness permitted by Section 8.1(f), do not exceed
$70,000,000 in the aggregate.
8.14 NO FURTHER NEGATIVE PLEDGES.
The Credit Parties will not permit any Consolidated Party 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 8.1(b) or the Capital Leases described on Schedule 8.1, provided that
any such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith and (c) the SunTrust Loan
Agreement.
SECTION 9
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
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(a) Payment. Any Credit Party shall
(i) default in the payment when due of any
principal of any of the Loans or of any reimbursement
obligations arising from drawings under Letters of Credit, or
(ii) default, and such default shall continue for
three (3) or more Business Days, in the payment when due of
any interest on the Loans or on any reimbursement obligations
arising from drawings under Letters of Credit, or of any Fees
or other amounts owing hereunder, under any of the other
Credit Documents or in connection herewith or therewith; or
(b) Representations. Any representation, warranty or
statement made or deemed to be made by any Credit Party herein, in any
of the other Credit Documents, or in any statement or certificate
delivered or required to be delivered pursuant hereto or thereto shall
prove untrue in any material respect on the date as of which it was
deemed to have been made; or
(c) Covenants. Any Credit Party shall
(i) default in the due performance or observance
of any term, covenant or agreement contained in Sections 7.2,
7.4, 7.9, 7.11, 7.12 or Section 8;
(ii) default in the due performance or observance
of any term, covenant or agreement contained in Sections
7.1(a), (b), (c) or (d) and such default shall continue
unremedied for a period of at least 5 days after the earlier
of a responsible officer of a Credit Party becoming aware of
such default or notice thereof by the Administrative Agent; or
(iii) default in the due performance or observance
by it of any term, covenant or agreement (other than those
referred to in subsections (a), (b), (c)(i) or (c)(ii) of this
Section 9.1) contained in this Credit Agreement and such
default shall continue unremedied for a period of at least 30
days after the earlier of a responsible officer of a Credit
Party becoming aware of such default or notice thereof by the
Administrative Agent; or
(d) Other Credit Documents. (i) Any Credit Party shall
default in the due performance or observance of any term, covenant or
agreement in any of the other Credit Documents (subject to applicable
grace or cure periods, if any), or (ii) except as a result of or in
connection with a merger of a Subsidiary permitted under Section 8.4,
any Credit Document 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 shall
so state in writing; or
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(e) Guaranties. Except as the result of or in connection
with a merger of a Subsidiary permitted under Section 8.4, the guaranty
given by any Guarantor hereunder (including any Additional Credit
Party) or any provision thereof shall cease to be in full force and
effect, or any Guarantor (including any Additional Credit Party)
hereunder or any Person acting by or on behalf of such Guarantor shall
deny or disaffirm such Guarantor's obligations under such guaranty, or
any Guarantor shall default in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed
pursuant to any guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur
with respect to any Consolidated Party; or
(g) Defaults under Other Agreements.
(i) Any Consolidated Party shall default in the
performance or observance (beyond the applicable grace period
with respect thereto, if any) of any material obligation or
condition of any contract or lease material to the
Consolidated Parties, taken as a whole; or
(ii) With respect to any Indebtedness (other than
Indebtedness outstanding under this Credit Agreement) in
excess of $500,000 in the aggregate for the Consolidated
Parties taken as a whole, (A) any Consolidated Party shall (1)
default in any payment (beyond the applicable grace period
with respect thereto, if any) with respect to any such
Indebtedness, or (2) the occurrence and continuance of a
default in the observance or performance relating to such
Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event
or condition shall occur or condition exist, the effect of
which default or other event or condition is to cause, or
permit, the holder or holders of such Indebtedness (or trustee
or agent on behalf of such holders) to cause (determined
without regard to whether any notice or lapse of time is
required), any such Indebtedness to become due prior to its
stated maturity; or (B) any such Indebtedness shall be
declared due and payable, or required to be prepaid other than
by a regularly scheduled required prepayment, prior to the
stated maturity thereof; or
(h) Judgments. One or more judgments or decrees shall be
entered against one or more of the Consolidated Parties involving a
liability of $500,000 or more in the aggregate (to the extent not paid
or fully covered by insurance provided by a carrier who has
acknowledged coverage and has the ability to perform) and any such
judgments or decrees shall not have been vacated, discharged or stayed
or bonded pending appeal within 30 days from the entry thereof; or
(i) ERISA. Any of the following events or conditions, if
such event or condition could have a Material Adverse Effect: (i) any
"accumulated funding deficiency," as such term is defined in Section
302 of ERISA and Section 412 of the Code, whether or not waived, shall
exist with respect to any Plan, or any lien shall arise on the assets
of any Consolidated Party or any ERISA Affiliate in favor of the PBGC
or a Plan; (ii) an ERISA
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Event shall occur with respect to a Single Employer Plan, which is, in
the reasonable opinion of the Administrative Agent, likely to result in
the termination of such Plan for purposes of Title IV of ERISA; (iii)
an ERISA Event shall occur with respect to a Multiemployer Plan or
Multiple Employer Plan, which is, in the reasonable opinion of the
Administrative Agent, likely to result in (A) the termination of such
Plan for purposes of Title IV of ERISA, or (B) any Consolidated Party
or any ERISA Affiliate incurring any liability in connection with a
withdrawal from, reorganization of (within the meaning of Section 4241
of ERISA), or insolvency or (within the meaning of Section 4245 of
ERISA) such Plan; or (iv) any prohibited transaction (within the
meaning of Section 406 of ERISA or Section 4975 of the Code) or breach
of fiduciary responsibility shall occur which may subject any
Consolidated Party or any ERISA Affiliate to any liability under
Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the
Code, or under any agreement or other instrument pursuant to which any
Consolidated Party or any ERISA Affiliate has agreed or is required to
indemnify any person against any such liability; or
(j) Ownership. There shall occur a Change of Control.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the requisite Lenders
(pursuant to the voting requirements of Section 11.6) or cured to the
satisfaction of the requisite Lenders (pursuant to the voting procedures in
Section 11.6), the Administrative Agent shall, upon the request and direction of
the Required Lenders, by written notice to the Credit Parties, take any of the
following actions:
(a) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of and any
accrued interest in respect of all Loans, any reimbursement obligations
arising from drawings under Letters of Credit and any and all other
indebtedness or obligations of any and every kind owing by the Credit
Parties to the Administrative Agent and/or any of the Lenders hereunder
to be due 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 the Credit Parties.
(c) Cash Collateral. Direct the Credit Parties to pay
(and the Credit Parties agree that upon receipt of such notice, or upon
the occurrence of an Event of Default under Section 9.1(f), they will
immediately pay) to the Administrative Agent additional cash, to be
held by the Administrative Agent, for the benefit of the Lenders, in a
cash collateral account as additional security for the LOC Obligations
in respect of subsequent drawings under all then outstanding Letters of
Credit in an amount equal to the maximum aggregate amount which may be
drawn under all Letters of Credits then outstanding.
(d) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents including,
without limitation, all rights and remedies against a Guarantor and all
rights of set-off.
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Notwithstanding the foregoing, if an Event of Default specified in
Section 9.1(f) shall occur with respect to the Borrower, then the Commitments
shall automatically terminate and all Loans, all reimbursement obligations
arising from drawings under Letters of Credit, 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 the giving of any notice or
other action by the Administrative Agent or the Lenders.
SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably appoints, designates
and authorizes the Administrative Agent to take such action on its
behalf under the provisions of this Credit Agreement and each other
Credit Document and to exercise such powers and perform such duties as
are expressly delegated to it by the terms of this Credit Agreement or
any other Credit Document, together with such powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Credit Document, the
Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Administrative
Agent have or be deemed to have any fiduciary relationship with any
Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into
this Credit Agreement or any other Credit Document or otherwise exist
against the Administrative Agent. Without limiting the generality of
the foregoing sentence, the use of the term "agent" herein and in the
other Credit Documents with reference to the Administrative Agent is
not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship
between independent contracting parties.
(b) The Issuing Lender shall act on behalf of the Lenders
with respect to any Letters of Credit issued by it and the documents
associated therewith, and the Issuing Lender shall have all of the
benefits and immunities (i) provided to the Administrative Agent in
this Section 10 with respect to any acts taken or omissions suffered by
the Issuing Lender in connection with Letters of Credit issued by it or
proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if
the term "Administrative Agent" as used in this Section 10 and in the
definition of "Agent-Related Person" included the Issuing Lender with
respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the Issuing Lender.
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10.2 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties under this
Credit Agreement or any other Credit Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
10.3 LIABILITY OF ADMINISTRATIVE AGENT.
No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Credit
Agreement or any other Credit Document or the transactions contemplated hereby
(except for its own gross negligence or willful misconduct in connection with
its duties expressly set forth herein), or (b) be responsible in any manner to
any Lender or participant for any recital, statement, representation or warranty
made by any Credit Party or any officer thereof, contained herein or in any
other Credit Document, 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 any other Credit Document,
or the validity, effectiveness, genuineness, enforceability or sufficiency of
this Credit Agreement or any other Credit Document, or for any failure of any
Credit Party or any other party to any Credit Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Credit Agreement or any other Credit Document, or to inspect the
properties, books or records of any Credit Party or any Affiliate thereof.
10.4 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing,
communication, signature, resolution, representation, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, electronic mail message, statement or other document or
conversation believed by it 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 counsel to any Credit
Party), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified
in failing or refusing to take any action under any Credit Document
unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, 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 this Credit Agreement or any other Credit Document
in accordance with a request or consent of the Required Lenders (or
such greater number of Lenders as may be expressly required hereby in
any instance) and such
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request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders.
(b) For purposes of determining compliance with the
conditions specified in Section 5.1, each Lender that has signed this
Credit Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have
received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
10.5 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the Administrative
Agent shall have received written notice from a Lender or the Borrower referring
to this Credit Agreement, describing such Default and stating that such notice
is a "notice of default." The Administrative Agent will notify the Lenders of
its receipt of any such notice. The Administrative Agent shall take such action
with respect to such Default as may be directed by the Required Lenders in
accordance with Section 9; provided, however, that unless and until the
Administrative Agent has received any such direction, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default as it shall deem advisable or in the
best interest of the Lenders.
10.6 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Credit Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Credit Parties and their respective Subsidiaries, and
all applicable bank or other regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Credit
Agreement and to extend credit to the Borrower and the other Credit Parties
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person 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 the other Credit Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Credit Parties. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent herein, the Administrative Agent shall not
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have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Credit Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.
10.7 INDEMNIFICATION OF ADMINISTRATIVE AGENT.
Whether or not the transactions contemplated hereby are consummated,
the Lenders shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of any Credit Party and without limiting the
obligation of any Credit Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Lender shall be liable for the
payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from such Agent-Related
Person's own gross negligence or willful misconduct; provided, however, that no
action taken in accordance with the directions of the Required Lenders shall be
deemed to constitute gross negligence or willful misconduct for purposes of this
Section. Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including fees and expenses of counsel) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Credit Agreement, any other Credit
Document, or any document contemplated by or referred to herein, to the extent
that the Administrative Agent is not reimbursed for such expenses by or on
behalf of the Borrower. The undertaking in this Section shall survive
termination of the Commitments, the payment of all other Credit Party
Obligations and the resignation of the Administrative Agent.
10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Credit Parties and their respective
Affiliates as though Bank of America were not the Administrative Agent or the
Issuing Lender hereunder and without notice to or consent of the Lenders. The
Lenders acknowledge that, pursuant to such activities, Bank of America or its
Affiliates may receive information regarding any Credit Party or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of such Credit Party or such Affiliate) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, Bank of America shall have the same rights and
powers under this Credit Agreement as any other Lender and may exercise such
rights and powers as though it were not the Administrative Agent or the Issuing
Lender, and the terms "Lender" and "Lenders" include Bank of America in its
individual capacity.
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10.9 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign as Administrative Agent upon 30
days' notice to the Lenders; provided that any such resignation by Bank of
America shall also constitute its resignation as Issuing Lender and Swingline
Lender. If the Administrative Agent resigns under this Credit Agreement, the
Required Lenders shall appoint from among the Lenders a successor administrative
agent for the Lenders, which successor administrative agent shall be consented
to by the Borrower at all times other than during the existence of an Event of
Default (which consent of the Borrower shall not be unreasonably withheld or
delayed). If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent, the Issuing
Lender and Swingline Lender and the respective terms "Administrative Agent,"
"Issuing Lender" and "Swingline Lender" shall mean such successor administrative
agent, Letter of Credit issuer and swingline lender, and the retiring
Administrative Agent's appointment, powers and duties as Administrative Agent
shall be terminated and the retiring Issuing Lender's and Swingline Lender's
rights, powers and duties as such shall be terminated, without any other or
further act or deed on the part of such retiring Issuing Lender or Swingline
Lender or any other Lender, other than the obligation of the successor Issuing
Lender to issue letters of credit in substitution for the Letters of Credit, if
any, outstanding at the time of such succession or to make other arrangements
satisfactory to the retiring Issuing Lender to effectively assume the
obligations of the retiring Issuing Lender with respect to such Letters of
Credit. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 9 and Section 11.5 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. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.
10.10 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Credit Party, the Administrative Agent
(irrespective of whether the principal of any Loan or LOC Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, LOC
Obligations and all other Credit Party Obligations that are owing and
unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders and the
Administrative
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Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative Agent
and their respective agents and counsel and all other amounts due the
Lenders and the Administrative Agent under Sections 3.5 and 11.5)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 3.5 and 11.5.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Credit Party Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
10.11 GUARANTY MATTERS.
The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion, to release any Guarantor from its obligations
hereunder if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder. Upon request by the Administrative Agent at any time, the
Required Lenders will confirm in writing the Administrative Agent's authority to
release any Guarantor from its obligations hereunder pursuant to this Section
10.11.
10.12 OTHER AGENTS; ARRANGERS AND MANAGERS.
None of the Lenders or other Persons identified on the facing page or
signature pages of this Credit Agreement as a "syndication agent,"
"documentation agent," "co-agent," "book manager," "lead manager," "arranger,"
"lead arranger" or "co-arranger" shall have any right, power, obligation,
liability, responsibility or duty under this Credit Agreement other than, in the
case of such Lenders, 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 11
MISCELLANEOUS
11.1 NOTICES.
(a) GENERAL. Unless otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in
writing (including by facsimile transmission). All such written notices
shall be mailed, faxed or delivered to the applicable address,
facsimile number or (subject to subsection (c) below) electronic mail
address, and all notices and other communications expressly permitted
hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:
(i) if to the Borrower, the Administrative
Agent, the Issuing Lender or the Swingline Lender, to the
address, facsimile number, electronic mail address or
telephone number specified for such Person on SCHEDULE 11.1 or
to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such
party in a notice to the other parties; and
(ii) if to any other Lender, to the address,
facsimile number, electronic mail address or telephone number
specified in its Administrative Questionnaire or to such other
address, facsimile number, electronic mail address or
telephone number as shall be designated by such party in a
notice to the Borrower, the Administrative Agent, the Issuing
Lender and the Swingline Lender.
All such notices and other communications shall be deemed to be given
or made upon the earlier to occur of (i) actual receipt by the relevant
party hereto and (ii) (A) if delivered by hand or by courier, when
signed for by or on behalf of the relevant party hereto; (B) if
delivered by mail, four Business Days after deposit in the mails,
postage prepaid; (C) if delivered by facsimile, when sent and receipt
has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of subsection
(c) below), when delivered; PROVIDED, HOWEVER, that notices and other
communications to the Administrative Agent, the Issuing Lender and the
Swingline Lender pursuant to the terms hereof shall not be effective
until actually received by such Person. In no event shall a voicemail
message be effective as a notice, communication or confirmation
hereunder.
(b) EFFECTIVENESS OF FACSIMILE DOCUMENTS AND SIGNATURES.
Credit Documents may be transmitted and/or signed by facsimile. The
effectiveness of any such documents and signatures shall, subject to
applicable law, have the same force and effect as manually-signed
originals and shall be binding on all Credit Parties, the
Administrative Agent and the Lenders. The Administrative Agent may also
require that any such documents and signatures be confirmed by a
manually-signed original thereof; PROVIDED, HOWEVER, that the failure
to request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.
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(c) LIMITED USE OF ELECTRONIC MAIL. Electronic mail and
Internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information as
provided in Section 7.2, and to distribute Credit Documents for
execution by the parties thereto, and may not be used for any other
purpose.
(d) RELIANCE BY ADMINISTRATIVE AGENT AND LENDERS. The
Administrative Agent and the Lenders shall be entitled to rely and act
upon any notices (including telephonic Notice of Borrowing and
Swingline Loan Requests) purportedly given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. The
Borrower shall indemnify each Agent-Related Person and each Lender from
all losses, costs, expenses and liabilities resulting from the reliance
by such Person on each notice purportedly given by or on behalf of the
Borrower. All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and
each of the parties hereto hereby consents to such recording.
11.2 RIGHT OF SET-OFF; ADJUSTMENTS.
Upon the occurrence and during the continuance of any Event of Default,
each Lender (and each of its Affiliates) is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender (or any
of its Affiliates) to or for the credit or the account of any Credit Party
against any and all of the obligations of such Person now or hereafter existing
under this Credit Agreement, under the Notes, under any other Credit Document or
otherwise, irrespective of whether such Lender shall have made any demand under
hereunder or thereunder and although such obligations may be unmatured. Each
Lender agrees promptly to notify any affected Credit Party 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. The rights of each Lender under this Section 11.2 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
11.3 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Credit Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender
and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance
with the provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of
this Section, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) or (i) of this
Section (and any other attempted assignment or
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transfer by any party hereto shall be null and void). Nothing in this
Credit Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right,
remedy or claim under or by reason of this Credit Agreement.
(b) Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under
this Credit Agreement (including all or a portion of its Commitment and
the Loans (including for purposes of this subsection (b),
participations in LOC Obligations and in Swingline Loans) at the time
owing to it); provided that (i) except in the case of an assignment of
the entire remaining amount of the assigning Lender's Commitment and
the Loans at the time owing to it or in the case of an assignment to a
Lender or an Affiliate of a Lender or an Approved Fund (as defined in
subsection (g) of this Section) with respect to a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) subject to each such assignment, determined as
of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if "Trade Date"
is specified in the Assignment and Assumption, as of the Trade Date,
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 consents (each such consent not to
be unreasonably withheld or delayed); (ii) each partial assignment
shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Credit Agreement
with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not apply to rights in respect of Swingline Loans;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent, the Issuing Lender and the Swingline Lender
unless the Person that is the proposed assignee is itself a Lender
(whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and (iv) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of $3,500.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the
effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Credit Agreement
and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this
Credit Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Credit Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Credit Agreement, such
Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 3.6, 3.11, 3.12 and 11.5 with
respect to facts and circumstances occurring prior to the effective
date of such assignment). Upon request, the Borrower (at its expense)
shall execute and deliver a Note to the assignee Lender. Any assignment
or transfer by a Lender of rights or obligations under this Credit
Agreement that does not comply with this subsection shall be treated
for purposes of this Credit Agreement as a
85
sale by such Lender of a participation in such rights and obligations
in accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at the Administrative
Agent's office a copy of each Assignment and Assumption delivered to it
and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and
LOC Obligations owing to, each Lender pursuant to the terms hereof from
time to time (the "REGISTER"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this
Credit Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the
Borrower or any of the Borrower's Affiliates or Subsidiaries) (each, a
"PARTICIPANT") in all or a portion of such Lender's rights and/or
obligations under this Credit Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender's participations
in LOC Obligations and/or Swingline Loans) owing to it); PROVIDED that
(i) such Lender's obligations under this Credit Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii)
the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Credit Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole
right to enforce this Credit Agreement and to approve any amendment,
modification or waiver of any provision of this Credit Agreement;
PROVIDED that such agreement or instrument may provide that such Lender
will not, without the consent of the Participant, agree to any
amendment, waiver or other modification described in the proviso to
Section 11.6 that directly affects such Participant. Subject to
subsection (e) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.6, 3.11 and
3.12 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this Section. To
the extent permitted by law, each Participant also shall be entitled to
the benefits of Section 11.2 as though it were a Lender, provided such
Participant agrees to be subject to Section 3.14 as though it were a
Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Section 3.6 or 3.11 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant
is made with the Borrower's prior written consent. A Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.11 unless the Borrower is notified of the
participation sold to such Participant
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and such Participant agrees, for the benefit of the Borrower, to comply
with Section 3.11(d) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Credit
Agreement (including under its Note, if any) to secure obligations of
such Lender, including any pledge or assignment to secure obligations
to a Federal Reserve Bank; provided that no such pledge or assignment
shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party
hereto.
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Administrative Agent or any
Lender and any of the Credit Parties shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies provided herein are cumulative and not
exclusive of any rights or remedies which the Administrative Agent or any Lender
would otherwise have. No notice to or demand on any Credit Party in any case
shall entitle the Credit Parties to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent or the Lenders to any other or further action in any
circumstances without notice or demand.
11.5 EXPENSES; INDEMNIFICATION.
(a) The Credit Parties jointly and severally agree to pay on
demand all costs and expenses of the Administrative Agent in connection with the
syndication, preparation, execution, delivery, administration, modification, and
amendment of this Credit Agreement, the other Credit Documents, and the other
documents to be delivered hereunder, including, without limitation, the
reasonable fees and expenses of counsel for the Administrative Agent (including
the cost of internal counsel) with respect thereto and with respect to advising
the Administrative Agent as to its rights and responsibilities under the Credit
Documents. The Credit Parties further jointly and severally agree to pay on
demand all costs and expenses of the Administrative Agent and the Lenders, if
any (including, without limitation, reasonable attorneys' fees and expenses and
the cost of internal counsel), in connection with the enforcement (whether
through negotiations, legal proceedings, or otherwise) of the Credit Documents
and the other documents to be delivered hereunder.
(b) The Credit Parties jointly and severally agree to indemnify
and hold harmless the Administrative Agent and each Lender and each of their
Affiliates and their respective officers, directors, employees, agents, and
advisors (each, an "INDEMNIFIED PARTY") from and against any and all claims,
damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation, or proceeding or preparation
87
of defense in connection therewith) the Credit Documents, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Loans (including any of the foregoing arising from the negligence of the
Indemnified Party), except to the extent such claim, damage, loss, liability,
cost, or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 11.5 applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any of the Credit Parties, their respective directors,
shareholders or creditors or an Indemnified Party or any other Person or any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Credit Parties agree not
to assert any claim against the Administrative Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees,
attorneys, agents, and advisers, on any theory of liability, for special,
indirect, consequential, or punitive damages arising out of or otherwise
relating to the Credit Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans.
(c) Without prejudice to the survival of any other agreement of
the Credit Parties hereunder, the agreements and obligations of the Credit
Parties contained in this Section 11.5 shall survive the repayment of the Loans,
LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments hereunder.
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, the Required Lenders and the
Borrower, PROVIDED, HOWEVER, that:
(a) without the consent of each Lender affected thereby,
neither this Credit Agreement nor any other Credit Document may be
amended to
(i) extend the final maturity of any Loan or of
any reimbursement obligation, or any portion thereof, arising
from drawings under Letters of Credit,
(ii) reduce the rate or extend the time of
payment of interest (other than as a result of waiving the
applicability of any post-default increase in interest rates)
thereon or Fees hereunder,
(iii) reduce or waive the principal amount of any
Loan or of any reimbursement obligation, or any portion
thereof, arising from drawings under Letters of Credit,
(iv) increase the Commitment of a Lender over the
amount thereof in effect (it being understood and agreed that
a waiver of any Default or Event of
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Default or mandatory reduction in the Commitments shall not
constitute a change in the terms of any Commitment of any
Lender),
(v) release the Borrower or substantially all of
the other Credit Parties from its or their obligations under
the Credit Documents,
(vi) amend, modify or waive any provision of this
Section 11.6 or Section 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12,
3.13, 3.14, 3.15, 9.1(a), 11.2, 11.3, 11.5 or 11.9,
(vii) reduce any percentage specified in, or
otherwise modify, the definition of Required Lenders, or
(viii) consent to the assignment or transfer by the
Borrower or all or substantially all of the other Credit
Parties of any of its or their rights and obligations under
(or in respect of) the Credit Documents except as permitted
thereby;
(b) without the consent of the Administrative Agent, no
provision of Section 10 may be amended; and
(c) without the consent of the Issuing Lender, no
provision of Section 2.2 may be amended, and without the consent of the
Swingline Lender, no provision of Section 2.3 may be amended.
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 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.
11.7 COUNTERPARTS.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart for each of the parties hereto. Delivery by facsimile by any of
the parties hereto of an executed counterpart of this Credit Agreement shall be
as effective as an original executed counterpart hereof and shall be deemed a
representation that an original executed counterpart hereof will be delivered.
11.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
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11.9 SURVIVAL.
(a) All indemnities set forth herein, including, without
limitation, in Section 3.11, 3.12, 10.5 or 11.5 shall survive the
execution and delivery of this Credit Agreement, the making of the
Loans, the issuance of the Letters of Credit, the repayment of the
Loans, LOC Obligations and other obligations under the Credit Documents
and the termination of the Commitments hereunder, and all
representations and warranties made by the Credit Parties herein shall
survive delivery of the Notes and the making of the Loans hereunder.
(b) All representations and warranties made hereunder and
in any other Credit Document or other document delivered pursuant
hereto or thereto or in connection herewith or therewith shall survive
the execution and delivery hereof and thereof. Such representations and
warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the
Administrative Agent or any Lender or on their behalf and
notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default at the time of any Loan or
issuance of any Letter of Credit, and shall continue in full force and
effect as long as any Loan or any other Credit Party Obligation
hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.
11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS CREDIT AGREEMENT AND, UNLESS OTHERWISE EXPRESSLY
PROVIDED THEREIN, THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. Any legal action or proceeding with respect to this
Credit Agreement or any other Credit Document may be brought in the
courts of the State of North Carolina, or of the United States located
in the State of North Carolina, and, by execution and delivery of this
Credit Agreement, each of the Credit Parties hereby irrevocably accepts
for itself and in respect of its property, generally and
unconditionally, the nonexclusive jurisdiction of such courts. Each of
the Credit Parties further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address set out for notices
pursuant to Section 11.1, such service to become effective three (3)
days after such mailing. Nothing herein shall affect the right of the
Administrative Agent or any Lender to serve process in any other manner
permitted by law or to commence legal proceedings or to otherwise
proceed against any Credit Party in any other jurisdiction.
(b) Each of the Credit Parties hereby irrevocably waives
any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in
connection with this Credit Agreement or any other Credit Document
brought in the courts referred to in subsection (a) above and hereby
further
90
irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION ARISING UNDER ANY CREDIT DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY
OF THEM WITH RESPECT TO ANY CREDIT DOCUMENT, OR THE TRANSACTIONS
RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH
PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND
THAT ANY PARTY TO THIS CREDIT AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
11.11 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 ENTIRETY.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
11.13 BINDING EFFECT; TERMINATION.
(a) This Credit Agreement shall become effective at such
time when all of the conditions set forth in Section 5.1 have been
satisfied or waived by the Lenders and it shall have been executed by
each Credit Party and the Administrative Agent, and the Administrative
Agent shall have received copies hereof (telefaxed or otherwise) which,
when taken together, bear the signatures of each Lender, and thereafter
this Credit Agreement shall be binding upon and inure to the benefit of
each Credit Party, the Administrative Agent and each Lender and their
respective successors and assigns.
(b) The term of this Credit Agreement shall be until no
Loans, LOC Obligations or any other amounts payable hereunder or under
any of the other Credit Documents shall remain outstanding, no Letters
of Credit shall be outstanding, all of the Credit Party
91
Obligations have been irrevocably satisfied in full and all of the
Commitments hereunder shall have expired or been terminated.
11.14 CONFIDENTIALITY.
The Administrative Agent and each Lender (each, a "LENDING PARTY")
agrees to keep confidential any information furnished or made available to it by
the Credit Parties pursuant to this Credit Agreement; PROVIDED that nothing
herein shall prevent any Lending Party from disclosing such information (a) to
any other Lending Party or any Affiliate of any Lending Party, or any officer,
director, employee, agent, or advisor of any Lending Party or Affiliate of any
Lending Party, (b) to any other Person if reasonably incidental to the
administration of the credit facility provided herein, (c) as required by any
law, rule, or regulation, (d) upon the order of any court or administrative
agency, (e) upon the request or demand of any regulatory agency or authority,
(f) that is or becomes available to the public or that is or becomes available
to any Lending Party other than as a result of a disclosure by any Lending Party
prohibited by this Credit Agreement, (g) in connection with any litigation to
which such Lending Party or any of its Affiliates may be a party, (h) to the
extent necessary in connection with the exercise of any remedy under this Credit
Agreement or any other Credit Document, and (i) subject to provisions
substantially similar to those contained in this Section 11.14, to any actual or
proposed participant or assignee.
11.15 USE OF SOURCES.
Each of the Lenders hereby represents and warrants to the Borrower that
at least one of the following statements is an accurate representation as to the
course of funds to be used by such lender in connection with the financing
hereunder:
(a) no part of such funds constitutes assets allocated to
any separate account maintained by such lender in which any employee
benefit plan (or its related trust) has any interest;
(b) to the extent that any part of such funds constitutes
assets allocated to any separate account maintained by such lender,
such Lender has disclosed to the Borrower the name of each employee
benefit plan whose assets in such account exceed 10% of the total
assets of such account as of the date of such purchase (and, for
purposes of this subsection (b), all employee benefit plans maintained
by the same employer or employee organization are deemed to be a single
plan;
(c) to the extent that any part of such funds constitutes
assets of an insurance company's general account, such insurance
company has complied with all of the requirements of the regulations
issued under Section 401(e)(a)(A) of ERISA; or
(d) such funds constitute assets of one or more specific
benefit plans which such Lender has identified in writing to the
Borrower.
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As used in this Section 11.15, the terms "employee benefit plan" and
"separate account" shall have the respective meanings assigned to such terms in
Section 3 of ERISA.
11.16 CONFLICT.
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document, on
the other hand, this Credit Agreement shall control.
[Signature Page to Follow]
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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: TRACTOR SUPPLY COMPANY,
a Delaware corporation
By: /s/ Calvin B. Massmann
-----------------------------------------
Name: Calvin B. Massmann
---------------------------------------
Title: Senior Vice President/C.F.O.
--------------------------------------
GUARANTORS: TRACTOR SUPPLY CO. OF MICHIGAN, LLC,
a Michigan limited liability company
By: /s/ Calvin B. Massmann
-----------------------------------------
Name: Calvin B. Massmann
---------------------------------------
Title: Senior Vice President/C.F.O.
--------------------------------------
TRACTOR SUPPLY CO. OF TEXAS, LP,
a Texas limited partnership
By: /s/ Calvin B. Massmann
-----------------------------------------
Name: Calvin B. Massmann
---------------------------------------
Title: Senior Vice President/C.F.O.
--------------------------------------
[Signatures continue.]
1
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.
By: /s/ Bryan Hulker
-----------------------------------------
Name: Bryan Hulker
---------------------------------------
Title: Senior Vice President
--------------------------------------
LENDERS: BANK OF AMERICA, N.A.
By: /s/ Bryan Hulker
-----------------------------------------
Name: Bryan Hulker
---------------------------------------
Title: Senior Vice President
--------------------------------------
[Signatures continue.]
2
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Ward C. Wilson
-----------------------------------------
Name: Ward C. Wilson
---------------------------------------
Title: Senior Vice President
--------------------------------------
[Signatures continue.]
3
SOUTHTRUST BANK
By: /s/ Michael Johnson
-----------------------------------------
Name: Michael Johnson
---------------------------------------
Title: Assistant Vice President
--------------------------------------
[Signatures continue.]
4
AMSOUTH BANK
By: /s/ Tom Dozier, Jr.
-----------------------------------------
Name: Tom Dozier, Jr.
---------------------------------------
Title: Vice President
--------------------------------------
[Signatures continue.]
5
SUNTRUST BANK
By: /s/ James M. Sloan, Jr.
-----------------------------------------
Name: James M. Sloan, Jr.
---------------------------------------
Title: Director
--------------------------------------
[Signatures continue.]
6
COMPASS BANK
By: /s/ Keely W. McGee
-----------------------------------------
Name: Keely W. McGee
---------------------------------------
Title: Vice President
--------------------------------------
[Signatures Continue.]
7
BRANCH BANKING & TRUST COMPANY
By: /s/ R. Andrew Beam
-----------------------------------------
Name: R. Andrew Beam
---------------------------------------
Title: Senior Vice President
--------------------------------------
[Signatures continue.]
8
NATIONAL CITY BANK
By: /s/ Michael J. Durbin
-----------------------------------------
Name: Michael J. Durbin
---------------------------------------
Title: Vice President
--------------------------------------
[Signatures continue.]
9
REGIONS BANK
By: /s/ Sam Prudhomme
-----------------------------------------
Name: Sam Prudhomme
---------------------------------------
Title: Assistant Vice President
--------------------------------------
[Signatures continue.]
10
FIFTH THIRD BANK
By: /s/ James E. Simpon
-----------------------------------------
Name: James E. Simpon
---------------------------------------
Title: Vice President
--------------------------------------
[Signatures End.]
11