CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of the 23rd day of December, 2005 by and among
COMPX INTERNATIONAL INC., a corporation organized under the laws of Delaware
(the "Borrower"), the lenders who are or may become a party to this Agreement,
as Lenders (the "Lenders"), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association, as Administrative Agent for the Lenders (the
"Administrative Agent").
STATEMENT OF PURPOSE
The Lenders have extended certain credit facilities to the Borrower
pursuant to the Credit Agreement dated as of January 22, 2003, by and among the
Borrower, the Lenders and the Administrative Agent (as amended by (i) the First
Amendment to Credit Agreement dated as of October 20, 2003, (ii) the Second
Amendment to Credit Agreement, Waiver and Release of European Investment
Collateral dated January 7, 2005, and (iii) the Third Amendment to Credit
Agreement dated October 31, 2005, collectively the "Existing Credit Agreement").
The Borrower has requested, and the Lenders have agreed, to terminate and
replace the existing credit facilities provided under the Existing Credit
Agreement, with the credit facilities extended to the Borrower on the terms and
conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms when used in this Agreement
shall have the meanings assigned to them below:
"Administrative Agent" means Wachovia in its capacity as Administrative
Agent hereunder, and any successor thereto appointed pursuant to Section 12.9.
"Administrative Agent's Correspondent" means Wachovia Bank, National
Association, London Branch, or any other financial institution designated by the
Administrative Agent to act as its correspondent hereunder with respect to the
distribution and payment of Alternative Currency Loans.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1(c).
"Affiliate" means, with respect to any Person, any other Person (other than
a Subsidiary of the Borrower) which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person or any of its Subsidiaries. The term "control" means (a) the
power to vote ten percent (10%) or more of the securities or other equity
interests of a Person having ordinary voting power, or (b) the possession,
directly or indirectly, of any other power to direct or cause the direction of
the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be increased, reduced or otherwise
modified at any time or from time to time pursuant to the terms hereof. On the
Closing Date, the Aggregate Commitment shall be Fifty Million Dollars
($50,000,000).
"Agreement" means this Credit Agreement, as amended, restated, supplemented
or otherwise modified from time to time.
"Alternative Currency" means (i) the euro, (ii) the Canadian Dollar and
(iii) with the prior written consent of the Administrative Agent and the
Lenders, any other lawful currency (other than Dollars) which is freely
transferable and convertible into Dollars in the United States currency market
and freely available to all of the Lenders in the London interbank deposit
market.
"Alternative Currency Amount" means with respect to each Loan made or
continued (or to be made or continued) in an Alternative Currency, the amount of
such Alternative Currency which is equivalent to the principal amount in Dollars
of such Loan at the most favorable spot exchange rate (to the Borrower)
determined by the Administrative Agent to be available to it at approximately
11:00 a.m. (Charlotte time) two (2) Business Days before such Loan is made or
continued (or to be made or continued). When used with respect to any other sum
expressed in Dollars, "Alternative Currency Amount" shall mean the amount of
such Alternative Currency which is equivalent to the amount so expressed in
Dollars at the most favorable spot exchange rate (to the Borrower) determined by
the Administrative Agent to be available to it at the relevant time.
"Alternative Currency Commitment" means the lesser of (i) Ten Million
Dollars ($10,000,000) and (ii) the Aggregate Commitment, as such amount may be
reduced or modified at any time or from time to time pursuant to the terms
hereof.
"Alternative Currency Facility" means the alternative currency facility
established pursuant to Section 2.2.
"Alternative Currency Lender" means Wachovia, in its capacity as
alternative currency lender hereunder.
"Alternative Currency Loan" means any revolving credit loan denominated in
an Alternative Currency made by the Alternative Currency Lender to the Borrower
pursuant to Section 2.2, and all such Alternative Currency Loans collectively as
the context requires.
"Alternative Currency Note" means the Alternative Currency Note made by the
Borrower payable to the order of the Alternative Currency Lender, substantially
in the form of Exhibit A-3 hereto, evidencing the Alternative Currency Loans,
and any amendments, supplements and modifications thereto, any substitutes
therefor and any replacements, restatements, renewals or extensions thereof, in
whole or in part.
"Applicable Law" means all applicable provisions of constitutions, laws,
statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities and
all orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in Section
4.1(c); provided, that with respect to each LIBOR Rate Loan made in an
Alternative Currency, the Applicable Margin shall include the Mandatory Cost
Rate, as determined pursuant to the formula set forth on Schedule 1.1(b) hereto.
"Application" means an application, in the form specified by the Issuing
Lender from time to time, requesting the Issuing Lender to issue a Letter of
Credit.
"Approved Fund" means any Person (other than a natural Person), including,
without limitation, any special purpose entity, that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business; provided,
that with respect to any assignment of any Commitment, such Approved Fund must
be administered by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity
or an Affiliate of an entity that administers or manages a Lender.
"Arbitration Rules" shall have the meaning assigned thereto in Section
13.6(a).
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 13.10(b).
"Available Commitment" means, as to any Lender at any time, an amount equal
to (a) such Lender's Commitment less (b) such Lender's Extensions of Credit.
"Base Rate" means, at any time, the higher of (a) the Prime Rate and (b)
the Federal Funds Rate plus 1/2 of 1%; each change in the Base Rate shall take
effect simultaneously with the corresponding change or changes in the Prime Rate
or the Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate based upon the
Base Rate as provided in Section 4.1(a).
"Benefited Lender" shall have the meaning assigned thereto in Section 4.6.
"Borrower" means CompX International Inc., a corporation organized under
the laws of Delaware, in its capacity as borrower hereunder.
"Business Day" means (a) for all purposes other than as set forth in clause
(b) below, any day (other than a Saturday or Sunday) on which banks in
Charlotte, North Carolina and New York, New York, are open for the conduct of
their domestic or international commercial banking business, as applicable, and
(b) with respect to all notices and determinations in connection with, and
payments of principal and interest on, any LIBOR Rate Loan, any day (i) that is
a Business Day described in clause (a) and that is also a day for trading by and
between banks in deposits for the applicable Permitted Currency in the London
interbank market and (ii) on which banks are open for the conduct of their
domestic and international banking business in the place where the
Administrative Agent or the Administrative Agent's Correspondent shall make
available Loans in such Permitted Currency. Notwithstanding the foregoing, with
respect to any amount denominated or to be denominated in the euro, any
reference to a "Business Day" shall be construed as a reference to a day (other
than a Saturday or Sunday) on which banks are generally open for business in New
York, New York and prime banks in London generally provide quotations for
deposits denominated in the euro.
"Calculation Date" shall have the meaning assigned thereto in Section
4.1(c).
"Canadian Dollar" means, at any time of determination, the then official
currency of Canada.
"Capital Expenditures" means, with respect to the Borrower and its
Subsidiaries for any period, the aggregate amount of all expenditures of the
Borrower and its Subsidiaries during such period that, in conformity with GAAP,
are included in "additions to property, plant and equipment" or comparable items
reflected in the consolidated financial statements of the Borrower and its
Subsidiaries.
"Capital Lease" means any lease of any property by the Borrower or any of
its Subsidiaries, as lessee, that should, in accordance with GAAP, be classified
and accounted for as a capital lease on a Consolidated balance sheet of the
Borrower and its Subsidiaries.
"Change in Control" shall have the meaning assigned thereto in Section
11.1(h).
"Closing Date" means the date of this Agreement or such later Business Day
upon which each condition described in Section 5.2 shall be satisfied or waived
in all respects in a manner acceptable to the Administrative Agent, in its sole
discretion.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or modified from time to time.
"Collateral" means the collateral security for the Obligations pledged or
granted pursuant to the Security Documents.
"Collateral Agreement" means the collateral agreement of even date executed
by the Borrower and each of the Subsidiary Guarantors and Borrower's Wholly
Owned Material Foreign Subsidiaries in favor of the Administrative Agent, for
the benefit of itself and the Lenders, substantially in the form of Exhibit I,
as amended, restated, supplemented or otherwise modified from time to time.
"Commitment" means, as to any Lender, the obligation of such Lender to make
Loans (including, without limitation, to participate in Swingline Loans and
Alternative Currency Loans) to the Borrower, and issue or participate in Letters
of Credit issued for the account of the Borrower, in an aggregate principal or
face amount at any time outstanding not to exceed the amount set forth opposite
such Lender's name on Schedule 1.1(a) hereto, as the same may be reduced or
modified at any time or from time to time pursuant to the terms hereof.
"Commitment Fee Rate" shall have the meaning assigned thereto in Section
4.3(a).
"Commitment Percentage" means, as to any Lender at any time, the ratio of
(a) the amount of the Commitment of such Lender to (b) the Aggregate Commitment
of all of the Lenders.
"Consolidated" means, when used with reference to financial statements or
financial statement items of the Borrower and its Subsidiaries, such statements
or items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"Consolidated Net Worth" means, with respect to the Borrower and its
Subsidiaries, on any date of determination, the total stockholders' equity
(including capital stock, additional paid-in capital and retained earnings after
deducting the treasury stock) of the Borrower and its Subsidiaries appearing on
a Consolidated balance sheet of the Borrower and its Subsidiaries prepared in
accordance with GAAP (excluding on a cumulative basis any adjustments for
foreign currency translation).
"Costs of Acquisition" means, with respect to any Permitted Acquisition, as
at the date of entering into any agreement therefor, the sum of the following
(without duplication): (i) the value of the capital stock, warrants or options
to acquire capital stock of the Borrower or any Subsidiary of the Borrower to be
transferred in connection therewith, (ii) the amount of any cash and fair market
value of other property (excluding property described in clause (i) and the
unpaid principal amount of any Debt instrument) given as consideration, (iii)
the amount (determined by using the face amount or the amount payable at
maturity, whichever is greater) of any Debt incurred, assumed or acquired by the
Borrower or any Subsidiary of the Borrower in connection with such Permitted
Acquisition, (iv) all additional purchase price amounts in the form of earnouts
and other contingent obligations that should be recorded on the financial
statements of the Borrower and its Subsidiaries in accordance with GAAP, (v) all
amounts paid in respect of covenants not to compete, consulting agreements that
should be recorded on the financial statements of the Borrower and its
Subsidiaries in accordance with GAAP, and other affiliated contracts in
connection with such Permitted Acquisition, (vi) the aggregate fair market value
of all other consideration given by the Borrower or any Subsidiary of the
Borrower in connection with such Permitted Acquisition recorded on the financial
statements of the Borrower and its Subsidiaries in accordance with GAAP, and
(vii) out-of-pocket transaction costs for the services and expenses of
attorneys, accountants and other consultants incurred in effecting such
transaction, and other similar transaction costs so incurred. For purposes of
determining the Cost of Acquisition for any transaction, (A) the capital stock
of the Borrower shall be valued (I) in the case of capital stock that is then
designated as a national market system security by the National Association of
Securities Dealers, Inc. ("NASDAQ") or is listed on a national securities
exchange, the average of the last reported bid and ask quotations or the last
prices reported on, or immediately prior to, the acquisition date and (II) with
respect to any other shares of capital stock, as reasonably determined by the
Board of Directors of the Borrower, (B) the capital stock of any Subsidiary
shall be valued as reasonably determined by the Board of Directors of such
Subsidiary and (C) with respect to any Permitted Acquisition accomplished
pursuant to the exercise of options or warrants or the conversion of securities,
the Cost of Acquisition shall include both the cost of acquiring such option,
warrant or convertible security as well as the cost of exercise or conversion.
"Credit Facility" means, collectively, the Revolving Credit Facility, the
Swingline Facility, the Alternative Currency Facility and the L/C Facility.
"Debt" means, with respect to the Borrower and its Subsidiaries at any date
and without duplication, the sum of the following calculated in accordance with
GAAP: (a) all liabilities, obligations and indebtedness of any such Person for
borrowed money including but not limited to obligations evidenced by bonds,
debentures, notes or other similar instruments, (b) all obligations of any such
Person to pay a deferred purchase price for property or services (provided that
"Debt" shall not include trade payables and other accrued liabilities arising in
the ordinary course of business which are either (i) not more than ninety (90)
days past due or (ii) if more than ninety (90) days past due, being contested in
good faith by appropriate proceedings diligently conducted and for which
adequate reserves have been provided in accordance with GAAP), (c) all
obligations of any such Person as lessee under Capital Leases, (d) all Debt of
any other Person secured by a Lien on any asset of any such Person, (e) all
Guaranty Obligations of any such Person, (f) all obligations, contingent or
otherwise, of any such Person relative to the face amount of letters of credit,
whether or not drawn, including without limitation any Reimbursement Obligation,
and banker's acceptances issued for the account of any such Person, (g) all
obligations of any such Person to redeem, repurchase, exchange, defease or
otherwise make payments in respect of capital stock or other securities or
partnership interests of such Person, (h) all net payment obligations incurred
by any such Person pursuant to Hedging Agreements (solely to the extent that
such net payment obligations are in excess of $2,000,000), (i) all outstanding
payment obligations with respect to Synthetic Leases and (j) all obligations of
any such Person under any asset securitization program. For the purpose of item
(h) above, (1) the amount of any net payment obligation pursuant to any Hedging
Agreement on any date shall be deemed to be the Termination Value thereof as of
such date and (2) "Termination Value" means, in respect of any one or more
Hedging Agreements, after taking into account the effect of any legally
enforceable netting agreement relating to such Hedging Agreements, (A) for any
date on or after the date such Hedging Agreements have been closed out and
termination value(s) determined in accordance therewith, such termination
value(s), and (B) for any date prior to the date referenced in clause (A), the
amount(s) determined as the mark-to-market value(s) for such Hedging Agreements,
as determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Hedging Agreements (which
may include any Person that is a Lender or an Affiliate thereof at the time such
Hedging Agreement is executed).
"Default" means any of the events specified in Section 11.1, which with the
passage of time, the giving of notice or any other condition, would constitute
an Event of Default.
"Disputes" shall have the meaning set forth in Section 13.6.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Dollar Amount" means (a) with respect to each Loan made or continued (or
to be made or continued), or Letter of Credit issued or extended (or to be
issued or extended), in Dollars, the principal amount thereof and (b) with
respect to each Loan made or continued (or to be made or continued) in an
Alternative Currency, the amount of Dollars which is equivalent to the principal
amount of such Loan, at the most favorable spot exchange rate (to the Borrower)
determined by the Administrative Agent at approximately 11:00 a.m. (the time of
the Administrative Agent's Correspondent's office) two (2) Business Days before
such Loan is made or continued (or to be made or continued). When used with
respect to any other sum expressed in an Alternative Currency, "Dollar Amount"
shall mean the amount of Dollars which is equivalent to the amount so expressed
in such Alternative Currency at the most favorable spot exchange rate (to the
Borrower) determined by the Administrative Agent to be available to it at the
relevant time.
"Domestic Subsidiary" means any Subsidiary of the Borrower organized under
the laws of any state of the United States or the District of Columbia.
"EBIT" means, for any period, the sum of the following determined on a
Consolidated basis, without duplication, for the Borrower and its Subsidiaries
in accordance with GAAP: (a) Net Income for such period plus (b) the sum of the
following to the extent deducted in determining Net Income: (i) income taxes,
franchise taxes and similar taxes imposed in lieu of net income taxes, (ii)
Interest Expense and (iii) all non cash charges associated with any asset
impairment less (c) interest income; provided that for the purposes of
determining EBIT for any period during which any Permitted Acquisition is
consummated, EBIT shall be adjusted to give effect to the consummation of such
Permitted Acquisition on a pro forma basis in accordance with GAAP, as if such
Permitted Acquisition occurred on the first day of such period, such adjustments
to be calculated in a manner reasonably satisfactory to the Administrative
Agent.
"EBITDA" means, for any period, the sum of the following determined on a
Consolidated basis, without duplication, for the Borrower and its Subsidiaries
in accordance with GAAP: (a) Net Income for such period plus (b) the sum of the
following to the extent deducted in determining Net Income: (i) income taxes,
franchise taxes and similar taxes imposed in lieu of net income taxes, (ii)
Interest Expense, (iii) amortization, depreciation and other non-cash charges
and (iv) all non cash charges associated with any asset impairment less (c)
interest income; provided that for the purposes of determining EBITDA for any
period during which any Permitted Acquisition is consummated, EBITDA shall be
adjusted to give effect to the consummation of such Permitted Acquisition on a
pro forma basis in accordance with GAAP, as if such Permitted Acquisition
occurred on the first day of such period, such adjustments to be calculated in a
manner reasonably satisfactory to the Administrative Agent.
"Eligible Assignee" means, with respect to any assignment of the rights,
interest and obligations of a Lender hereunder, a Person that is at the time of
such assignment (a) a commercial bank organized under the laws of the United
States or any state thereof, having combined capital and surplus in excess of
$500,000,000, (b) a commercial bank organized under the laws of any other
country that is a member of the Organization of Economic Cooperation and
Development, or a political subdivision of any such country, having combined
capital and surplus in excess of $500,000,000, (c) a finance company, insurance
company or other financial institution which in the ordinary course of business
extends credit of the type extended hereunder and has total assets in excess of
$1,000,000,000, (d) already a Lender hereunder (whether as an original party to
this Agreement or as the assignee of another Lender), (e) the successor (whether
by transfer of assets, merger or otherwise) to all or substantially all of the
commercial lending business of the assigning Lender, (f) any Affiliate of the
assigning Lender, (g) any Approved Fund or (h) any other Person that has been
approved in writing as an Eligible Assignee by (i) other than upon the
occurrence and during the continuance of any Default or Event of Default, the
Borrower, and (ii) the Administrative Agent.
"EMU" means the economic and monetary union as contemplated in the Treaty
on European Union.
"EMU Legislation" means legislative measures of the Council of European
Union for the introduction of, change over to or operation of the euro.
"Employee Benefit Plan" means any employee benefit plan within the meaning
of Section 3(3) of ERISA which (a) is maintained for employees of the Borrower
or any ERISA Affiliate or (b) has at any time within the preceding six (6) years
been maintained for the employees of the Borrower or any current or former ERISA
Affiliate.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations (other than internal reports prepared
by any Person in the ordinary course of business and not in response to any
third party action or request of any kind) or proceedings relating in any way to
any actual or alleged violation of or liability under any Environmental Law or
relating to any permit issued, or any approval given, under any such
Environmental Law, including, without limitation, any and all claims by
Governmental Authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages, contribution, indemnification cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to human health or the environment.
"Environmental Laws" means any and all federal, foreign, state, provincial
and local laws, statutes, ordinances, rules, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities,
relating to the protection of human health or the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, and the
rules and regulations thereunder, each as amended or modified from time to time.
"ERISA Affiliate" means any Person who together with the Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"euro" means the single currency to which the Participating Member States
of the European Union have converted.
"Eurodollar Reserve Percentage" means, for any day with respect to any
LIBOR Rate Loan denominated in Dollars, the percentage (expressed as a decimal
and rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in
effect for such day as prescribed by the Federal Reserve Board (or any
successor) for determining the maximum reserve requirement (including without
limitation any basic, supplemental or emergency reserves) in respect of
eurocurrency liabilities or any similar category of liabilities for a member
bank of the Federal Reserve System in New York City.
"Event of Default" means any of the events specified in Section 11.1,
provided that any requirement for passage of time, giving of notice, or any
other condition has been satisfied.
"Existing Credit Agreement" shall have the meaning assigned thereto in the
Statement of Purpose.
"Existing Facility" means the credit facility established pursuant to the
Existing Credit Agreement.
"Existing Bond Documentation" means the agreements and other documentation
described on Schedule 1.1(c).
"Extensions of Credit" means, as to any Lender at any time, (a) an amount
equal to the sum of (i) the aggregate principal amount of all Revolving Credit
Loans made by such Lender then outstanding, (ii) such Lender's Commitment
Percentage of the L/C Obligations then outstanding, (iii) such Lender's
Commitment Percentage of the Swingline Loans then outstanding and (iv) such
Lender's Commitment Percentage of the Alternative Currency Loans then
outstanding or (b) the making of any Loan or participation in any Letter of
Credit by such Lender, as the context requires.
"FDIC" means the Federal Deposit Insurance Corporation, or any successor
thereto.
"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be
the same as the rate for the most immediately preceding Business Day.
"Fiscal Year" means the fiscal year of the Borrower and its Subsidiaries
ending on the nearest Sunday to December 31 (for United States reporting
purposes).
"Foreign Subsidiary" means any Subsidiary of the Borrower not organized
under the laws of any State of the United States or the District of Columbia.
"GAAP" means accounting principles generally accepted in the United States
of America, as recognized by the U.S. Securities and Exchange Commissioin, the
American Institute of Certified Public Accountants and the Financial Accounting
Standards Board, consistently applied and maintained on a consistent basis for
the Borrower and its Subsidiaries throughout the period indicated and (subject
to Section 13.9) consistent with the prior financial practice of the Borrower
and its Subsidiaries. Any differences in the recognition of GAAP between such
parties shall be resolved in favor of (i) the U.S. Securities and Exchange
Commission over the American Institute of Certified Public Accountants and the
Financial Accounting Standards Board and (ii) the Financial Accounting Standards
Board over the American Institute of Certified Public Accountants.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" means, with respect to the Borrower and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt or other obligations of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise) or (b) entered into for
the purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided, that the term Guaranty
Obligation shall not include endorsements for collection or deposit in the
ordinary course of business.
"Hazardous Materials" means any substances or materials that are toxic,
explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise harmful to human health or the environment and are or
become regulated by any Governmental Authority, or that contain, without
limitation, asbestos, polychlorinated biphenyls, urea formaldehyde foam
insulation, petroleum hydrocarbons, petroleum derived substances or waste, crude
oil, nuclear fuel, natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to any Interest Rate
Contract, forward rate agreement, commodity swap, forward foreign exchange
agreement, currency swap agreement, cross-currency rate swap agreement, currency
option agreement or other agreement or arrangement designed to alter the risks
of any Person arising from fluctuations in interest rates, currency values or
commodity prices, all as amended, restated, supplemented or otherwise modified
from time to time.
"Hedging Obligations" shall have the meaning assigned thereto in the
definition of "Obligations."
"Interest Expense" means, with respect to the Borrower and its Subsidiaries
for any period, the gross interest expense of the Borrower and its Subsidiaries,
all determined for such period on a Consolidated basis, without duplication, in
accordance with GAAP.
"Interest Period" shall have the meaning assigned thereto in Section
4.1(b).
"Interest Rate Contract" means any interest rate swap agreement, interest
rate cap agreement, interest rate floor agreement, interest rate collar
agreement, interest rate option or any other agreement regarding the hedging of
interest rate risk exposure executed in connection with hedging the interest
rate exposure of any Person and any confirming letter executed pursuant to such
agreement, all as amended, restated, supplemented or otherwise modified from
time to time.
"ISP 98" means the International Standby Practices (1998 Revision,
effective January 1, 1999), International Chamber of Commerce Publication No.
590.
"Issuing Lender" means Wachovia, in its capacity as issuer of any Letter of
Credit, or any successor thereto.
"Joinder Agreement" means, collectively, each joinder agreement executed in
favor of the Administrative Agent for the ratable benefit of itself and the
Lenders, substantially in the form of Exhibit J.
"L/C Commitment" means the lesser of (a) Ten Million Dollars ($10,000,000)
and (b) the aggregate Available Commitment.
"L/C Facility" means the letter of credit facility established pursuant to
Article III.
"L/C Obligations" means at any time, an amount equal to the sum of (a) the
aggregate undrawn and unexpired amount of the then outstanding Letters of Credit
and (b) the aggregate amount of drawings under Letters of Credit which have not
then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders other
than the Issuing Lender.
"Lender" means each Person executing this Agreement as a Lender (including,
without limitation, the Issuing Lender, the Swingline Lender and the Alternative
Currency Lender unless the context otherwise requires) set forth on the
signature pages hereto and each Person that hereafter becomes a party to this
Agreement as a Lender pursuant to Section 13.10.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Extensions of
Credit.
"Letters of Credit" shall have the meaning assigned thereto in Section 3.1.
"Leverage Ratio" means the ratio calculated pursuant to Section 9.1.
"LIBOR" means the rate of interest per annum determined on the basis of the
rate for deposits in Dollars in minimum amounts of at least $3,000,000 (or the
Alternative Currency Amount thereof with respect to a borrowing to be made in an
Alternative Currency) for a period equal to the applicable Interest Period which
appears on the Dow Jones Market Screen 3750, or the applicable Reuters Screen
Page, as determined by the Administrative Agent in its sole discretion, at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of the applicable Interest Period (rounded upward, if necessary, to the
nearest 1/100th of 1%). If, for any reason, such rate does not appear on Dow
Jones Market Screen 3750, or the applicable Reuters Screen Page, then "LIBOR"
shall be determined by the Administrative Agent to be the arithmetic average of
the rate per annum at which deposits in the Permitted Currency in which the
applicable Loan is denominated would be offered by first class banks in the
London interbank market to the Administrative Agent (or the Administrative
Agent's Correspondent) at approximately 11:00 a.m. (London time) two (2)
Business Days prior to the first day of the applicable Interest Period for a
period equal to such Interest Period. Each calculation by the Administrative
Agent of LIBOR shall be conclusive and binding for all purposes, absent manifest
error.
"LIBOR Rate" means
(i) with respect to any LIBOR Rate Loan denominated in Dollars, a rate per
annum (rounded upwards, if necessary, to the next higher 1/100th of 1%)
determined by the Administrative Agent pursuant to the following formula:
LIBOR Rate = LIBOR
-------------------------------
1.00-Eurodollar Reserve Percentage
and
(ii) with respect to any LIBOR Rate Loan denominated in any Alternative
Currency, a rate per annum (rounded upwards, if necessary, to the next higher
1/100th of 1%) equal to LIBOR.
Each calculation by the Administrative Agent of the LIBOR Rate shall be
conclusive and binding for all purposes, absent manifest error.
"LIBOR Rate Loan" means any Loan bearing interest at a rate based upon the
LIBOR Rate as provided in Section 4.1(a).
"Lien" means, with respect to any asset, any mortgage, leasehold mortgage,
lien, pledge, charge, security interest, hypothecation or encumbrance of any
kind in respect of such asset. For the purposes of this Agreement, a Person
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, Capital Lease or other title retention agreement relating to such
asset.
"Liquidity" means, with respect to the Borrower and its Subsidiaries as of
any date of determination, (i) consolidated cash and cash equivalents as of such
date plus (ii) the aggregate Available Commitments as of such date.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Applications, the Subsidiary Guaranty Agreement, the Security Documents, each
Joinder Agreement and each other document, instrument, certificate and agreement
executed and delivered by the Borrower or any Subsidiary thereof in connection
with this Agreement (excluding any Hedging Agreement), all as may be amended,
restated, supplemented or otherwise modified from time to time.
"Loans" means the collective reference to the Revolving Credit Loans, the
Alternative Currency Loans and the Swingline Loans and "Loan" means any of such
Loans.
"Mandatory Cost Rate" means an addition to the interest rate on any
Revolving Credit Loan or Alternative Currency Loan made by any Lender to
compensate such Lender for the cost imputed to the Lender resulting from the
imposition from time to time under or pursuant to the Bank of England Act 1998
and/or by the Bank of England and/or the Financial Services Authority (or other
Governmental Authorities of the United Kingdom) of a requirement to place
non-interest bearing cash ratio deposits or special deposits (whether interest
bearing or not) with the Bank of England and/or fees to the Financial Services
Authority calculated by reference to liabilities used to fund the Revolving
Credit Loans and the Alternative Currency Loans, expressed as a rate per annum
and determined pursuant to the formula set forth on Schedule 1.1(b) hereto.
"Material Acquisition" means any Permitted Acquisition, the Costs of
Acquisition of which exceed five percent (5%) of the total net assets of the
Borrower and its Subsidiaries as reflected on the financial statements delivered
in accordance with Section 7.1.
"Material Adverse Effect" means a material adverse effect on (i) the
properties, business, prospects, operations or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower or any of its Subsidiaries to perform its material
obligations under the Loan Documents to which it is a party, or (iii) the
validity and enforceability of the Loan Documents.
"Material Domestic Subsidiary" means, at any time, (a) any Domestic
Subsidiary of the Borrower with net assets in excess of five percent (5%) of the
total net assets of the Borrower and its Subsidiaries as reflected on the
financial statements delivered in accordance with Section 7.1, (b) any parent of
any Domestic Subsidiary referred to in clause (a) of this definition, which
parent is also a Domestic Subsidiary and which parent is not deemed a "Material
Domestic Subsidiary" pursuant to clause (a) of this definition, (c) any Domestic
Subsidiary of the Borrower voluntarily designated in writing to the
Administrative Agent by the Borrower as a "Material Domestic Subsidiary"
regardless of whether such Domestic Subsidiary is deemed a "Material Domestic
Subsidiary" pursuant to clause (a) or (b) of this definition and (d) any
Domestic Subsidiary of the Borrower that executes all the relevant joinder
documents in compliance with Section 8.10 regardless of whether such Domestic
Subsidiary is deemed a "Material Domestic Subsidiary" pursuant to clause (a),
(b) or (c) of this definition.
"Material Foreign Subsidiary" means, at any time, (a) any Foreign
Subsidiary of the Borrower directly owned by the Borrower or a Domestic
Subsidiary of the Borrower with net assets in excess of five percent (5%) of the
total net assets of the Borrower and its Subsidiaries as reflected on the
financial statements delivered in accordance with Section 7.1 and (b) any
Foreign Subsidiary of the Borrower voluntarily designated in writing to the
Administrative Agent by the Borrower as a "Material Foreign Subsidiary"
regardless of whether such Foreign Subsidiary is deemed a "Material Foreign
Subsidiary" pursuant to clause (a) of this definition.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making, or
is accruing an obligation to make, or has accrued an obligation to make,
contributions within the preceding six (6) years.
"Net Cash Position" means on any day, with respect to the Operating
Account, a sum equal to the opening available balance in the Operating Account,
plus any maturing investment principal and interest credited to the Operating
Account, minus the daily presentment of checks and Operating Account holds,
minus any floor balance which has been established to cover bank charges, minus
any maturing interest debited to the Operating Account, in each case for such
day.
"Net Income" means, with respect to the Borrower and its Subsidiaries, for
any period of determination, the net income (or loss) of the Borrower and its
Subsidiaries for such period, determined on a Consolidated basis in accordance
with GAAP; provided that there shall be excluded from Net Income (a) the net
income (or loss) of any Person in which the Borrower or any of its Subsidiaries
has a joint interest with a third party, except to the extent such net income is
actually paid to the Borrower or any of its Subsidiaries by dividend or other
distribution during such period, (b) the net income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary of such Person or is merged
into or consolidated with such Person or any of its Subsidiaries or that
Person's assets are acquired by such Person or any of its Subsidiaries, (c) the
cumulative effect of a change in accounting principles required or permitted by
a change in GAAP subsequent to the Closing Date, and (d) any net gain classified
as an extraordinary item in accordance with GAAP.
"Notes" means the collective reference to the Revolving Credit Notes, the
Alternative Currency Note and the Swingline Note and "Note" means any of such
Notes.
"Notice of Account Designation" shall have the meaning assigned thereto in
Section 2.4(b).
"Notice of Borrowing" shall have the meaning assigned thereto in Section
2.4(a).
"Notice of Conversion/Continuation" shall have the meaning assigned thereto
in Section 4.2.
"Obligations" means, in each case, whether now in existence or hereafter
arising: (a) the principal of and interest on (including interest accruing after
the filing of any bankruptcy or similar petition) the Loans, (b) the L/C
Obligations, (c) all existing or future payment and other obligations owing by
the Borrower under any Hedging Agreement (which such Hedging Agreement is
permitted hereunder) with any Person that is a Lender hereunder or an Affiliate
of a Lender hereunder at the time such Hedging Agreement is executed (all such
obligations with respect to any such Hedging Agreement, "Hedging Obligations")
and (d) all other fees and commissions (including attorneys' fees), charges,
indebtedness, loans, liabilities, financial accommodations, obligations,
covenants and duties owing by the Borrower or any of its Subsidiaries to the
Lenders or the Administrative Agent, in each case under or in respect of this
Agreement, any Note, any Letter of Credit or any of the other Loan Documents of
every kind, nature and description, direct or indirect, absolute or contingent,
due or to become due, contractual or tortious, liquidated or unliquidated, and
whether or not evidenced by any note.
"Officer's Compliance Certificate" shall have the meaning assigned thereto
in Section 7.2.
"Operating Account" means the principal operating account of the Borrower
maintained with Wachovia.
"Operating Lease" shall mean, as to any Person as determined in accordance
with GAAP, any lease of property (whether real, personal or mixed) by such
Person as lessee which is not a Capital Lease.
"Other Taxes" shall have the meaning assigned thereto in Section 4.13(b).
"Participating Member State" means each state so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of
the Code and which (a) is maintained for the employees of the Borrower or any
ERISA Affiliate or (b) has at any time within the preceding six (6) years been
maintained for the employees of the Borrower or any of its current or former
ERISA Affiliates.
"Permitted Acquisition" has the meaning set forth in Section 10.3(c).
"Permitted Acquisition Documents" means with respect to any acquisition
proposed by the Borrower or any Subsidiary thereof, the purchase agreement, sale
agreement, merger agreement or other agreement evidencing such acquisition,
including, without limitation, all legal opinions and each other document
executed, delivered, contemplated by or prepared in connection therewith and any
amendment, modification or supplement to any of the foregoing.
"Permitted Currency" means Dollars or any Alternative Currency, or each
such currency, as the context requires.
"Permitted Holders" means (i) Harold C. Simmons, (ii) the trustees of the
Harold C. Simmons Family Trust No. 1 dated January 1, 1964, the Harold C.
Simmons Family Trust No. 2 dated January 1, 1964 and any trust or trusts
established after the Closing Date for the benefit of Harold C. Simmons and/or
his spouse or his or her descendants, whether natural or adopted (such trusts
collectively, the "Trusts" and such individuals, collectively the
"Beneficiaries"), (iii) each of the Trusts, (iv) each of the Beneficiaries, (v)
any Person controlled, directly or indirectly, by one or more of the Persons
described in clauses (i) through (iv) above, (vi) any employee benefit plan or
pension fund of the Borrower or any Subsidiary and any Person holding any class
of voting stock of the Borrower or Subsidiary for or pursuant to the terms of
any such plan or fund, and (vii) any group made up of Persons described in
clauses (i) through (vi) above.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"Pounds Sterling" means, at any time of determination, the then official
currency of the United Kingdom of Great Britain and Northern Ireland.
"Prime Rate" means, at any time, the rate of interest per annum publicly
announced from time to time by Wachovia as its prime rate. Each change in the
Prime Rate shall be effective as of the opening of business on the day such
change in such prime rate occurs. The parties hereto acknowledge that the rate
announced publicly by Wachovia as its prime rate is an index or base rate and
shall not necessarily be its lowest or best rate charged to its customers or
other banks.
"Register" shall have the meaning assigned thereto in Section 13.10(d).
"Reimbursement Obligation" means the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Replaced Lender" shall have the meaning assigned thereto in Section
4.15(c). "Replacement Lender" shall have the meaning assigned thereto in Section
4.15(c).
"Required Lenders" means, at any date, any combination of Lenders whose
Commitment Percentages aggregate at least sixty-six and two-thirds percent
(66-2/3%) of the Aggregate Commitment or, if the Credit Facility has been
terminated pursuant to Section 11.2, any combination of Lenders holding at least
sixty-six and two-thirds percent (66-2/3%) of the aggregate Extensions of Credit
(with the aggregate amount of each Lender's risk participation and funded
participation in Alternative Currency Loans, Swingline Loans and L/C Obligations
being deemed "held" by such Lender for the purposes of this definition).
"Responsible Officer" means any of the following: the chief executive
officer, president, chief financial officer or controller of the Borrower or any
other officer of the Borrower reasonably acceptable to the Administrative Agent.
"Revolving Credit Facility" means the revolving credit, alternative
currency and swingline facilities established pursuant to Article II.
"Revolving Credit Loans" means any revolving credit loan denominated in
Dollars made by the Lenders to the Borrower pursuant to Section 2.1, and all
such revolving credit loans collectively as the context requires.
"Revolving Credit Notes" means the collective reference to the Revolving
Credit Notes made by the Borrower payable to the order of each Lender,
substantially in the form of Exhibit A-1 hereto, evidencing the Revolving Credit
Facility, and any amendments, supplements and modifications thereto, any
substitutes therefor, and any replacements, restatements, renewals or extensions
thereof, in whole or in part; "Revolving Credit Note" means any of such
Revolving Credit Notes.
"Revolving Credit Termination Date" means the earliest of the dates
referred to in Section 2.8.
"Security Documents" means the collective reference to the Subsidiary
Guaranty Agreement, the Collateral Agreement and each other agreement or writing
pursuant to which the Borrower or any Subsidiary thereof purports to guaranty
the payment and/or performance of the Obligations, in each case, as amended,
restated, supplemented or otherwise modified from time to time.
"Solvent" means, as to the Borrower and its Subsidiaries on a particular
date, that any such Person (a) has capital sufficient to carry on its business
and transactions and all business and transactions in which it is about to
engage and is able to pay its debts as they mature, (b) owns property having a
value, at fair valuation, greater than the amount required to pay its probable
liabilities (including contingencies), and (c) does not believe that it will
incur debts or liabilities beyond its ability to pay such debts or liabilities
as they mature.
"Subordinated Debt" means the collective reference to any Debt of the
Borrower or any Subsidiary subordinated in right and time of payment to the
Obligations and containing such other terms and conditions, in each case as are
satisfactory to the Required Lenders.
"Subsidiary" means as to any Person, any corporation, partnership, limited
liability company or other entity of which more than fifty percent (50%) of the
outstanding capital stock or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other managers of such
corporation, partnership, limited liability company or other entity is at the
time owned by or the management is otherwise controlled by such Person
(irrespective of whether, at the time, capital stock or other ownership
interests of any other class or classes of such corporation, partnership,
limited liability company or other entity shall have or might have voting power
by reason of the happening of any contingency). Unless otherwise qualified
references to "Subsidiary" or "Subsidiaries" herein shall refer to those of the
Borrower.
"Subsidiary Guarantors" means the Material Domestic Subsidiaries of the
Borrower.
"Subsidiary Guaranty Agreement" means the unconditional guaranty agreement
of even date executed by the Subsidiary Guarantors in favor of the
Administrative Agent, for the ratable benefit of itself and the Lenders,
substantially in the form of Exhibit H, as amended, restated, supplemented or
otherwise modified from time to time.
"Sweep Plus Service Program" means the Sweep Plus Service Program of
Wachovia and any other cash management arrangement which the Borrower and
Wachovia agree should be included in the borrowing and repayment of Swingline
Loans pursuant to Section 2.3.
"Swingline Commitment" means the lesser of (a) Five Million Dollars
($5,000,000) and (b) the Aggregate Commitment.
"Swingline Facility" means the swingline facility established pursuant to
Section 2.3.
"Swingline Lender" means Wachovia in its capacity as swingline lender
hereunder.
"Swingline Loan" means any swingline loan denominated in Dollars made by
the Swingline Lender to the Borrower pursuant to Section 2.3, and all such
swingline loans collectively as the context requires.
"Swingline Note" means the Swingline Note made by the Borrower payable to
the order of the Swingline Lender, substantially in the form of Exhibit A-2
hereto, evidencing the Swingline Loans, and any amendments, supplements and
modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extensions thereof, in whole or in part.
"Swingline Termination Date" means the first to occur of (a) the
resignation of Wachovia as Administrative Agent in accordance with Section 12.9
and (b) the Revolving Credit Termination Date.
"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 in accordance with GAAP.
"Taxes" shall have the meaning assigned thereto in Section 4.13(a).
"Termination Event" means except for any such event or condition that could
not reasonably be expected to have a Material Adverse Effect: (a) a "Reportable
Event" described in Section 4043 of ERISA for which the notice requirement has
not been waived by the PBGC, or (b) the withdrawal of the Borrower or any ERISA
Affiliate from a Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA, or (c) the termination of a
Pension Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination, under Section 4041
of ERISA, if the plan assets are not sufficient to pay all plan liabilities, or
(d) the institution of proceedings to terminate, or the appointment of a trustee
with respect to, any Pension Plan by the PBGC, or (e) any other event or
condition which would constitute grounds under Section 4042(a) of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan,
or (f) the imposition of a Lien pursuant to Section 412 of the Code or Section
302 of ERISA, or (g) the partial or complete withdrawal of the Borrower or any
ERISA Affiliate from a Multiemployer Plan if withdrawal liability is asserted by
such plan, or (h) any event or condition which results in the reorganization or
insolvency of a Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (i)
any event or condition which results in the termination of a Multiemployer Plan
under Section 4041A of ERISA or the institution by the PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA.
"Total Funded Debt" means, as of any date of determination with respect to
the Borrower and its Subsidiaries on a Consolidated basis without duplication,
the sum of all Debt of the Borrower and its Subsidiaries.
"Treaty on European Union" means the Treaty of Rome of March 25, 1957, as
amended by the Single European Act of 1986 and the Maastricht Treaty (signed
February 7, 1992), as amended from time to time.
"Uniform Customs" means the Uniform Customs and Practice for Documentary
Credits (1993 Revision), effective January 1994 International Chamber of
Commerce Publication No. 500.
"United States" means the United States of America.
"Wachovia" means Wachovia Bank, National Association, a national banking
association, and its successors.
"Wholly-Owned" means, with respect to a Subsidiary, any Subsidiary for
which all of the shares of capital stock or other ownership interests are,
directly or indirectly, owned or controlled by the Borrower and/or one or more
of its Wholly-Owned Subsidiaries (except for directors' qualifying shares or
other shares required by Applicable Law to be owned by a Person other than the
Borrower).
SECTION 1.2 General. Unless otherwise specified, a reference in this
Agreement to a particular article, section, subsection, Schedule or Exhibit is a
reference to that article, section, subsection, Schedule or Exhibit of this
Agreement. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Any reference herein to "Charlotte time"
shall refer to the applicable time of day in Charlotte, North Carolina.
SECTION 1.3 Effectiveness of Euro Provisions. With respect to any state (or
the currency of such state) that is not a Participating Member State on the date
of this Agreement, the provisions of Sections 4.1(g), 4.8(b), 4.8(c) and 4.14
shall become effective in relation to such state (and the currency of such
state) at and from the date on which such state becomes a Participating Member
State.
SECTION 1.4. Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(b) Miscellaneous. The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans. Subject to the terms and conditions of
this Agreement, and in reliance upon the representations and warranties set
forth herein, each Lender severally agrees to make Revolving Credit Loans in
Dollars to the Borrower from time to time from the Closing Date through, but not
including, the Revolving Credit Termination Date as requested by the Borrower,
in accordance with the terms of Section 2.4; provided, that, based upon the
Dollar Amount of all outstanding Loans and L/C Obligations, (a) the aggregate
principal amount of all outstanding Revolving Credit Loans (after giving effect
to any amount requested) shall not exceed the Aggregate Commitment less the sum
of all outstanding Swingline Loans, Alternative Currency Loans and L/C
Obligations and (b) the aggregate principal amount of all outstanding Revolving
Credit Loans from any Lender to the Borrower shall not at any time exceed such
Lender's Commitment less such Lender's Commitment Percentage of the sum of all
outstanding Swingline Loans, Alternative Currency Loans and L/C Obligations.
Each Revolving Credit Loan by a Lender shall be in a principal amount equal to
such Lender's Commitment Percentage of the aggregate principal amount of
Revolving Credit Loans requested on such occasion. Subject to the terms and
conditions hereof, the Borrower may borrow, repay and reborrow Revolving Credit
Loans hereunder until the Revolving Credit Termination Date.
SECTION 2.2 Alternative Currency Loans.
(a) Availability. Subject to the terms and conditions of this Agreement,
and in reliance upon the representations and warranties set forth herein, the
Alternative Currency Lender agrees to make Alternative Currency Loans to the
Borrower from time to time from the Closing Date through, but not including, the
Revolving Credit Termination Date as requested by the Borrower in accordance
with the terms of Section 2.4; provided, that, based upon the Dollar Amount of
all outstanding Loans and L/C Obligations, the aggregate principal amount of all
outstanding Alternative Currency Loans (after giving effect to any amount
requested) shall not exceed the lesser of (i) the Aggregate Commitment less the
sum of the aggregate principal amount of all outstanding Revolving Credit Loans
less the sum of all outstanding Swingline Loans and L/C Obligations, and (ii)
the Alternative Currency Commitment; provided further that the Alternative
Currency Lender will not make an Alternative Currency Loan from and after the
date which is one (1) day after it has received written notice from the
Administrative Agent (upon the request of the Required Lenders) that one or more
of the applicable conditions to Extensions of Credit specified in Section 5.3 is
not then satisfied until such conditions are satisfied or waived in accordance
with the provisions of this Agreement (and the Alternative Currency Lender shall
be entitled to conclusively rely on any such notice and shall have no obligation
to independently investigate the accuracy of such notice and shall have no
liability to the Borrower in respect thereof if such notice proves to be
inaccurate). Alternative Currency Loans shall be funded in an amount equal to
the Alternative Currency Amount of such Alternative Currency Loan. Subject to
the terms and conditions hereof, the Borrower may borrow, repay and reborrow
Alternative Currency Loans hereunder until the Revolving Credit Termination
Date.
(b) Refunding of Alternative Currency Loans.
(i) Upon the occurrence and during the continuance of an Event of
Default, each Alternative Currency Loan may, at the discretion of the
Alternative Currency Lender, be converted immediately to a Base Rate Loan funded
in Dollars by the Lenders in an amount equal to the Dollar Amount of such
Alternative Currency Loan for the remainder of the Interest Period applicable to
such Alternative Currency Loan. Such Base Rate Loan shall thereafter be
reflected as a Revolving Credit Loan of the Lenders on the books and records of
the Administrative Agent. Each Lender shall fund its respective Commitment
Percentage of such Revolving Credit Loan as required to repay Alternative
Currency Loans outstanding to the Alternative Currency Lender upon such demand
by the Alternative Currency Lender in no event later than 2:00 p.m. (Charlotte
time) on the next succeeding Business Day after such demand is made. No Lender's
obligation to fund its respective Commitment Percentage of any Revolving Credit
Loan required to repay such Alternative Currency Loan shall be affected by any
other Lender's failure to fund its Commitment Percentage of such Revolving
Credit Loan, nor shall any Lender's Commitment Percentage be increased as a
result of any such failure of any other Lender to fund its Commitment Percentage
of such Revolving Credit Loan.
(ii) The Borrower shall pay to the Alternative Currency Lender, for
the account of the Alternative Currency Lender, on demand the amount of such
Alternative Currency Loans to the extent amounts received from the Lenders are
not sufficient to refund in full the outstanding Alternative Currency Loans
requested or required to be refunded upon the occurrence and during the
continuance of an Event of Default. In addition, the Borrower hereby authorizes
the Administrative Agent, upon the occurrence and during the continuance of an
Event of Default, to charge any account maintained by the Borrower with the
Alternative Currency Lender (up to the amount available therein) in order to
immediately pay the Alternative Currency Lender the amount of such Alternative
Currency Loans to the extent amounts received from the Lenders are not
sufficient to repay in full the outstanding Alternative Currency Loans requested
or required to be refunded. If any portion of any such amount paid to the
Alternative Currency Lender shall be recovered by or on behalf of the Borrower
from the Alternative Currency Lender in bankruptcy or otherwise, the loss of the
amount so recovered shall be ratably shared among all the Lenders in accordance
with their respective Commitment Percentages (unless the amount so recovered by
or on behalf of the Borrower pertains to an Alternative Currency Loan extended
after the occurrence and during the continuance of an Event of Default of which
the Alternative Currency Lender has received notice in the manner required
pursuant to Section 12.5 and which such Event of Default has not been waived by
the Required Lenders or the Lenders, as applicable).
(iii) Each Lender acknowledges and agrees that its obligation to
refund Alternative Currency Loans in accordance with the terms of this Section
2.2 is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, non-satisfaction of the conditions
set forth in Article V. Further, each Lender agrees and acknowledges that if
prior to the refunding of any outstanding Alternative Currency Loans pursuant to
this Section 2.2, one of the events described in Section 11.1(i) or (j) shall
have occurred, each Lender will, on the date the applicable Revolving Credit
Loans would have been made, purchase an undivided participating interest in such
Alternative Currency Loans to be refunded in an amount equal to its Commitment
Percentage of the aggregate amount of such Alternative Currency Loans. Each
Lender will immediately transfer to the Administrative Agent, for the account of
the Alternative Currency Lender, in immediately available funds in Dollars, the
amount of its participation. Whenever, at any time after the Alternative
Currency Lender has received from any Lender such Lender's participating
interest in the refunded Alternative Currency Loans, the Alternative Currency
Lender receives any payment on account thereof, the Alternative Currency Lender
will distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded).
(iv) In the event that any Lender fails to make payment to the
Alternative Currency Lender of any amount due under this Section 2.2, the
Administrative Agent, on behalf of the Alternative Currency Lender, shall be
entitled to receive, retain and apply against such obligation the principal and
interest otherwise payable to such Lender hereunder until the Alternative
Currency Lender receives such payment from such Lender or such obligation is
otherwise fully satisfied. In addition to the foregoing, if for any reason any
Lender fails to make payment to the Alternative Currency Lender of any amount
due under this Section 2.2, such Lender shall be deemed, at the option of the
Administrative Agent, to have unconditionally and irrevocably purchased from the
Alternative Currency Lender, without recourse or warranty, an undivided interest
and participation in the applicable Alternative Currency Loan, and such interest
and participation may be recovered from such Lender together with interest
thereon at the Federal Funds Effective Rate for each day during the period
commencing on the date of demand and ending on the date such amount is received.
SECTION 2.3 Swingline Loans.
(a) Availability. Subject to the terms and conditions of this Agreement,
the Swingline Lender agrees to make Swingline Loans to the Borrower from time to
time from the Closing Date through, but not including, the Swingline Termination
Date; provided, that (i) all Swingline Loans shall be denominated in Dollars and
(ii) based upon the Dollar Amount of all outstanding Loans and L/C Obligations,
the aggregate principal amount of all outstanding Swingline Loans (after giving
effect to any amount requested), shall not exceed the lesser of (A) the
Aggregate Commitment less the sum of all outstanding Revolving Credit Loans,
Alternative Currency Loans and L/C Obligations and (B) the Swingline Commitment;
provided further that the Swingline Lender will not make a Swingline Loan from
and after the date which is one (1) day after it has received written notice
from the Administrative Agent (upon the request of the Required Lenders) that
one or more of the applicable conditions to Extensions of Credit specified in
Section 5.3 is not then satisfied until such conditions are satisfied or waived
in accordance with the provisions of this Agreement (and the Swingline Lender
shall be entitled to conclusively rely on any such notice and shall have no
obligation to independently investigate the accuracy of such notice and shall
have no liability to the Borrower in respect thereof if such notice proves to be
inaccurate).
(b) Sweep Plus Service Program. On each Business Day, the Administrative
Agent shall calculate the Net Cash Position. If the Net Cash Position is less
than zero, then the Borrower shall be deemed to have irrevocably requested that
the Swingline Lender make a Swingline Loan to the Borrower in an amount equal to
the lesser of (i) an amount, which when rounded up to the nearest $1,000, equals
or exceeds the amount of the deficit Net Cash Position and (ii) an amount, which
when added to the aggregate principal amount of all outstanding Swingline Loans
(after giving effect to any amount requested), shall not exceed the lesser of,
based upon the Dollar Amount of all outstanding Loans and L/C Obligations, (A)
the Aggregate Commitment less the sum of all outstanding Revolving Credit Loans,
all outstanding Alternative Currency Loans and the L/C Obligations and (B) the
Swingline Commitment; provided, however, that the obligation of the Swingline
Lender to make any such Swingline Loan to the Borrower shall be subject to all
the terms and conditions hereof (including, without limitation, Section 5.3
hereof).
(c) Payment of Principal and Interest. Principal and interest on Swingline
Loans deemed requested pursuant to Section 2.3(b) hereof shall be paid pursuant
to the terms and conditions of the Sweep Plus Service Program without any
deduction, setoff or counterclaim whatsoever. Principal and interest on
Swingline Loans requested pursuant to Section 2.3 hereof shall be paid pursuant
to the terms of this Agreement. Unless sooner paid pursuant to the provisions
hereof or the provisions of the Sweep Plus Service Program, the principal of the
Swingline Loans shall be paid in full, together with accrued interest thereon,
on the Swingline Termination Date.
(d) Refunding.
(i) Swingline Loans shall be refunded by the Lenders on demand by the
Swingline Lender. Such refundings shall be made by the Lenders in accordance
with their respective Commitment Percentages and shall thereafter be reflected
as Revolving Credit Loans of the Lenders on the books and records of the
Administrative Agent. Each Lender shall fund its respective Commitment
Percentage of Revolving Credit Loans as required to repay Swingline Loans
outstanding to the Swingline Lender upon demand by the Swingline Lender but in
no event later than 2:00 p.m. (Charlotte time) on the next succeeding Business
Day after such demand is made. No Lender's obligation to fund its respective
Commitment Percentage of a Swingline Loan shall be affected by any other
Lender's failure to fund its Commitment Percentage of a Swingline Loan, nor
shall any Lender's Commitment Percentage be increased as a result of any such
failure of any other Lender to fund its Commitment Percentage of a Swingline
Loan.
(ii) The Borrower shall pay to the Swingline Lender on demand the
amount of such Swingline Loans to the extent amounts received from the Lenders
are not sufficient to refund in full the outstanding Swingline Loans requested
or required to be refunded. In addition, the Borrower hereby authorizes the
Administrative Agent to charge any account maintained by the Borrower with the
Swingline Lender (up to the amount available therein) in order to immediately
pay the Swingline Lender the amount of such Swingline Loans to the extent
amounts received from the Lenders are not sufficient to repay in full the
outstanding Swingline Loans requested or required to be refunded. If any portion
of any such amount paid to the Swingline Lender shall be recovered by or on
behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the
loss of the amount so recovered shall be ratably shared among all the Lenders in
accordance with their respective Commitment Percentages (unless the amounts so
recovered by or on behalf of the Borrower pertain to a Swingline Loan extended
after the occurrence and during the continuance of an Event of Default of which
the Administrative Agent has received notice in the manner required pursuant to
Section 12.5 and which such Event of Default has not been waived by the Required
Lenders or the Lenders, as applicable).
(iii) Each Lender acknowledges and agrees that its obligation to
refund Swingline Loans in accordance with the terms of this Section 2.3 is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, non-satisfaction of the conditions
set forth in Article V. Further, each Lender agrees and acknowledges that if
prior to the refunding of any outstanding Swingline Loans pursuant to this
Section 2.3, one of the events described in Section 11.1(i) or (j) shall have
occurred, each Lender will, on the date the applicable Revolving Credit Loans
would have been made, purchase an undivided participating interest in such
Swingline Loans to be refunded in an amount equal to its Commitment Percentage
of the aggregate amount of such Swingline Loans. Each Lender will immediately
transfer to the Swingline Lender, in immediately available funds, the amount of
its participation and upon receipt thereof the Swingline Lender will deliver to
such Lender a certificate evidencing such participation dated the date of
receipt of such funds and for such amount. Whenever, at any time after the
Swingline Lender has received from any Lender such Lender's participating
interest in a Swingline Loan, the Swingline Lender receives any payment on
account thereof, the Swingline Lender will distribute to such Lender its
participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded).
(iv) In the event that any Lender fails to make payment to the
Swingline Lender of any amount due under this Section 2.3, the Administrative
Agent, on behalf of the Swingline Lender, shall be entitled to receive, retain
and apply against such obligation the principal and interest otherwise payable
to such Lender hereunder until the Swingline Lender receives such payment from
such Lender or such obligation is otherwise fully satisfied. In addition to the
foregoing, if for any reason any Lender fails to make payment to the Swingline
Lender of any amount due under this Section 2.3, such Lender shall be deemed, at
the option of the Administrative Agent, to have unconditionally and irrevocably
purchased from the Swingline Lender, without recourse or warranty, an undivided
interest and participation in the applicable Swingline Loan, and such interest
and participation may be recovered from such Lender together with interest
thereon at the Federal Funds Effective Rate for each day during the period
commencing on the date of demand and ending on the date such amount is received.
SECTION 2.4 Procedure for Advances of Revolving Credit Loans, Alternative
Currency Loans and Swingline Loans.
(a) Requests for Borrowing.
(i) Revolving Credit Loans and Alternative Currency Loans. The
Borrower shall give the Administrative Agent irrevocable prior written notice
substantially in the form attached hereto as Exhibit B (a "Notice of Borrowing")
not later than 12:00 p.m. (Charlotte time) (A) on the same Business Day as each
Base Rate Loan requested under this Section 2.4(a), (B) at least three (3)
Business Days before each LIBOR Rate Loan denominated in Dollars and (C) at
least four (4) Business Days before each LIBOR Rate Loan denominated in an
Alternative Currency, of its intention to borrow, specifying:
(1) the date of such borrowing, which shall be a Business Day;
(2) if such Loan is to be a Revolving Credit Loan or an
Alternative Currency Loan;
(3) if such Loan is to be a Revolving Credit Loan, whether such
Revolving Credit Loan shall be a LIBOR Rate Loan or a Base Rate Loan;
(4) the amount of such borrowing, which shall be in an amount
equal to the amount of the Aggregate Commitment or the Alternative
Currency Commitment, as applicable, then available to the Borrower, or
if less, (A) with respect to Base Rate Loans (other than Swingline
Loans), in an aggregate principal amount of $3,000,000 or a whole
multiple of $1,000,000 in excess thereof, (B) with respect to LIBOR
Rate Loans denominated in Dollars, in an aggregate principal amount of
$3,000,000 or a whole multiple of $1,000,000 in excess thereof and (C)
with respect to LIBOR Rate Loans denominated in an Alternative
Currency, in an aggregate principal Alternative Currency Amount of
$2,000,000 or a whole multiple of $1,000,000 in excess thereof; and
(5) if such Loan is to be a LIBOR Rate Loan, the duration of the
Interest Period applicable thereto.
A Notice of Borrowing received after 12:00 p.m. (Charlotte time) shall be deemed
received on the next Business Day. The Administrative Agent shall promptly
notify the Lenders of each Notice of Borrowing.
(ii) Swingline Loans. Swingline Loans shall be requested in the manner
set forth in Section 2.3.
(b) Disbursements.
(i) Revolving Credit Loans. Not later than 2:00 p.m. (Charlotte time)
on the proposed borrowing date for any Revolving Credit Loan, each Lender will
make available to the Administrative Agent, for the account of the Borrower, at
the Administrative Agent's Office in Dollars in funds immediately available to
the Administrative Agent, such Lender's Commitment Percentage of the Revolving
Credit Loan to be made on such borrowing date. The Borrower hereby irrevocably
authorizes the Administrative Agent to disburse the proceeds of each borrowing
requested pursuant to this Section 2.4 in immediately available funds by
crediting or wiring such proceeds to the deposit account of the Borrower
identified in the most recent notice substantially in the form of Exhibit C
hereto (a "Notice of Account Designation") delivered by the Borrower to the
Administrative Agent or as may be otherwise requested by the Borrower from time
to time (subject to the reasonable consent of the Administrative Agent). Subject
to Section 4.7 hereof, the Administrative Agent shall not be obligated to
disburse the portion of the proceeds of any Revolving Credit Loan requested
pursuant to this Section 2.4 to the extent that any Lender has not made
available to the Administrative Agent its Commitment Percentage of such
Revolving Credit Loan. Revolving Credit Loans to be made for the purpose of
refunding Swingline Loans shall be made by the Lenders as provided in Section
2.3(d). Revolving Credit Loans to be made for the purpose of refunding
Alternative Currency Loans shall be made by the Lenders as provided in Section
2.2(b).
(ii) Alternative Currency Loans. Not later than 11:00 a.m. (the time
of the Administrative Agent's Correspondent's office) on or before the proposed
borrowing date for any Alternative Currency Loan, the Alternative Currency
Lender will make available to the Administrative Agent, for the account of the
Borrower, at the office of the Administrative Agent's Correspondent in the
requested Alternative Currency in funds immediately available to the
Administrative Agent, the Alternative Currency Loan to be made on such borrowing
date. The Borrower hereby irrevocably authorizes the Administrative Agent to
disburse the proceeds of each borrowing requested pursuant to this Section 2.4
in immediately available funds by crediting or wiring such proceeds to the
deposit account of the Borrower identified in the most recent Notice of Account
Designation delivered by the Borrower to the Administrative Agent or as may be
otherwise requested by the Borrower from time to time (subject to the reasonable
consent of the Administrative Agent). Subject to Section 4.7, the Administrative
Agent shall not be obligated to disburse the portion of the proceeds of any Loan
requested pursuant to this Section 2.4 to the extent that the Alternative
Currency Lender has not made available to the Administrative Agent such
Alternative Currency Loan.
(iii) Swingline Loans. Swingline Loans shall be disbursed in the
manner set forth in Section 2.3.
SECTION 2.5 Repayment of Loans.
(a) Repayment on the Revolving Credit Termination Date. The Borrower hereby
agrees to repay the outstanding principal amount of (i) all Revolving Credit
Loans in full in Dollars on the Revolving Credit Termination Date, (ii) all
Alternative Currency Loans in full in the Alternative Currency in which each
Alternative Currency Loan was initially funded on the Revolving Credit
Termination Date and (iii) all Swingline Loans in full in Dollars on the
Swingline Termination Date (or, if earlier, in accordance with Section 2.3(d)),
together, in each case, with all accrued but unpaid interest thereon.
(b) Mandatory Repayment of Revolving Credit Loans.
(i) Aggregate Commitment. If at any time (as determined by the
Administrative Agent under Section 2.5(b)(v)), based upon the Dollar Amount of
all outstanding Loans and L/C Obligations, (A) solely because of currency
fluctuation, the outstanding principal amount of all Revolving Credit Loans
exceeds one hundred and five percent (105%) of the Aggregate Commitment less the
sum of all outstanding Swingline Loans, Alternative Currency Loans and L/C
Obligations or (B) for any other reason, the outstanding principal amount of all
Revolving Credit Loans exceeds the Aggregate Commitment less the sum of all
outstanding Swingline Loans, Alternative Currency Loans and L/C Obligations,
then, in each such case, the Borrower shall (I) first, if (and to the extent)
necessary to eliminate such excess, immediately repay outstanding Swingline
Loans (and/or reduce any pending request for such Loans on such day by the
Dollar Amount of such excess), (II) second, if (and to the extent) necessary to
eliminate such excess, immediately repay outstanding Revolving Credit Loans
which are Base Rate Loans by the Dollar Amount of such excess (and/or reduce any
pending request for such Loans on such day by the Dollar Amount of such excess),
(III) third, if (and to the extent) necessary to eliminate such excess,
immediately repay Revolving Credit Loans which are LIBOR Rate Loans and
Alternative Currency Loans (and/or reduce any pending requests for a borrowing
or continuation or conversion of such Loans submitted in respect of such Loans
on such day by the Dollar Amount of such excess) and (IV) fourth, with respect
to any Letters of Credit then outstanding, make a payment of cash collateral
into a cash collateral account opened by the Administrative Agent for the
benefit of the Lenders in an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit (such cash collateral to be applied
in accordance with Section 11.2(b)).
(ii) Alternative Currency Commitment. If at any time (as determined by
the Administrative Agent under Section 2.5(b)(v)), based upon the Dollar Amount
of all outstanding Loans and L/C Obligations, (A) solely because of currency
fluctuation, the outstanding principal amount of all Alternative Currency Loans
exceeds the lesser of (1) one hundred and five percent (105%) of the Aggregate
Commitment less the sum of all outstanding Swingline Loans, Revolving Credit
Loans and L/C Obligations and (2) one hundred and five percent (105%) of the
Alternative Currency Commitment or (B) for any other reason, the outstanding
principal amount of all Alternative Currency Loans exceeds the lesser of (1) the
Aggregate Commitment less the sum of all outstanding Swingline Loans, Revolving
Credit Loans and L/C Obligations and (2) the Alternative Currency Commitment,
then, in each such case, such excess shall be immediately repaid, in the
currency in which such Alternative Currency Loan or Alternative Currency Loans
were initially funded, by the Borrower to the Administrative Agent for the
account of the Alternative Currency Lender.
(iii) Swingline Commitment. If at any time (as determined by the
Administrative Agent under Section 2.5(b)(v)), based upon the Dollar Amount of
all outstanding Loans and L/C Obligations, and for any reason the outstanding
principal amount of all Swingline Loans exceeds the lesser of (1) the Aggregate
Commitment less the sum of all outstanding Revolving Credit Loans, Alternative
Currency Loans and L/C Obligations and (2) the Swingline Commitment, then, in
each such case, such excess shall be immediately repaid by the Borrower to the
Administrative Agent for the account of the Swingline Lender.
(iv) Excess L/C Obligations. If at any time (as determined by the
Administrative Agent under Section 2.5(b)(v)) and for any reason, based upon the
Dollar Amount of all outstanding Loans and L/C Obligations, the outstanding
amount of all L/C Obligations exceeds the lesser of (A) the Aggregate Commitment
less the sum of the amount of all outstanding Swingline Loans, Revolving Credit
Loans and Alternative Currency Loans and (B) the L/C Commitment, then, in each
such case, the Borrower shall make a payment of cash collateral into a cash
collateral account opened by the Administrative Agent for the benefit of the
Lenders in an amount equal to the aggregate then undrawn and unexpired amount of
such Letters of Credit (such cash collateral to be applied in accordance with
Section 11.2(b)).
(v) Compliance and Payments. The Borrower's compliance with this
Section 2.5(b) shall be tested from time to time by the Administrative Agent at
its sole discretion, but in any event shall be tested on (A) the date on which
the Borrower requests the Lenders to make a Revolving Credit Loan or the
Alternative Currency Lender to make an Alternative Currency Loan or the Issuing
Lender to issue a Letter of Credit and (B) the date an interest payment is due
under Section 4.1(e). Each such repayment pursuant to this Section 2.5(b) shall
be accompanied by any amount required to be paid pursuant to Section 4.11
hereof.
(c) Optional Repayments. The Borrower may at any time and from time to time
repay the Loans, in whole or in part, upon at least four (4) Business Days'
irrevocable notice to the Administrative Agent with respect to Alternative
Currency Loans, upon at least three (3) Business Days' irrevocable notice to the
Administrative Agent with respect to LIBOR Rate Loans denominated in Dollars and
upon receipt of Borrower's irrevocable notice with respect to Base Rate Loans
and Swingline Loans (if received prior to 11:00 a.m. (Charlotte time),
otherwise, upon at least one (1) Business Days' irrevocable notice to the
Administrative Agent), substantially in the form attached hereto as Exhibit D ,
specifying (i) the date of repayment, (ii) the amount of repayment, (iii)
whether the repayment is of Revolving Credit Loans, Alternative Currency Loans,
Swingline Loans, or a combination thereof, and, if of a combination thereof, the
amount allocable to each and (iv) whether the repayment is of LIBOR Rate Loans
denominated in an Alternative Currency, LIBOR Rate Loans denominated in Dollars,
Base Rate Loans, or a combination thereof, and, if of a combination thereof, the
amount allocable to each. Upon receipt of such notice, the Administrative Agent
shall promptly notify each Lender. If any such notice is given, the amount
specified in such notice shall be due and payable on the date set forth in such
notice. Partial repayments shall be in an aggregate amount (i) of $2,000,000 or
a whole multiple of $500,000 in excess thereof with respect to Base Rate Loans
(other than Swingline Loans), (ii) of $3,000,000 or a whole multiple of
$1,000,000 in excess thereof with respect to LIBOR Rate Loans denominated in
Dollars, (iii) of $2,000,000 or a whole multiple of $1,000,000 in excess thereof
(based upon the Alternative Currency Amount thereof) with respect to Alternative
Currency Loans and (iv) permitted pursuant to the terms and conditions of the
Sweep Plus Service Program (or as otherwise agreed to by the Swingline Lender
and the Borrower). Each such repayment shall be accompanied by any amount
required to be paid pursuant to Section 4.11 hereof.
(d) Limitation on Repayment of LIBOR Rate Loans. The Borrower may not repay
any LIBOR Rate Loan on any day other than on the last day of the Interest Period
applicable thereto unless such repayment is accompanied by any amount required
to be paid pursuant to Section 4.11 hereof.
(e) Hedging Agreements. No repayment or prepayment pursuant to this Section
2.5 shall affect any of the Borrower's obligations under any Hedging Agreement.
(f) Payment of Interest and Other Expenses. Each repayment or prepayment
pursuant to this Section 2.5 shall be accompanied by accrued interest on the
amount repaid.
SECTION 2.6 Notes.
(a) Revolving Credit Notes. Except as otherwise provided in Section
13.10(a) - (e), each Lender's Revolving Credit Loans and the obligation of the
Borrower to repay such Revolving Credit Loans shall be evidenced by a separate
Revolving Credit Note executed by the Borrower payable to the order of such
Lender.
(b) Alternative Currency Note. The Alternative Currency Loans and the
obligation of the Borrower to repay such Alternative Currency Loans shall be
evidenced by a separate Alternative Currency Note executed by the Borrower
payable to the order of the Alternative Currency Lender.
(c) Swingline Note. The Swingline Loans and the obligation of the Borrower
to repay such Swingline Loans shall be evidenced by a separate Swingline Note
executed by the Borrower payable to the order of the Swingline Lender.
SECTION 2.7 Permanent Reduction of the Aggregate Commitment and the
Alternative Currency Commitment.
(a) Voluntary Reduction. The Borrower shall have the right at any time and
from time to time, upon at least five (5) Business Days prior written notice to
the Administrative Agent, to permanently reduce, without premium or penalty, (i)
the entire Aggregate Commitment at any time or (ii) portions of the Aggregate
Commitment, from time to time, in an aggregate principal amount not less than
$2,000,000 or any whole multiple of $500,000 in excess thereof; provided that in
no event shall the Aggregate Commitment be reduced to an amount less than the
face amount of all Letters of Credit then outstanding.
(b) Corresponding Reductions. Each partial permanent reduction permitted
pursuant to this Section 2.7 shall (i) permanently reduce the Lenders'
Commitments pro rata in accordance with their respective Commitment Percentages
and (ii) permanently reduce the Alternative Currency Commitment pro rata in
accordance with the relative amount of the Alternative Currency Commitment and
the Aggregate Commitment.
(c) Corresponding Payments. Each permanent reduction permitted pursuant to
this Section 2.7 shall be accompanied by a payment of principal sufficient to
reduce (i) the aggregate Dollar Amount of all outstanding Revolving Credit
Loans, Alternative Currency Loans, Swingline Loans and L/C Obligations, as
applicable, after such reduction to the Aggregate Commitment as so reduced and
(ii) to the extent that the Alternative Currency Commitment is reduced, the
aggregate Dollar Amount of all outstanding Alternative Currency Loans to the
Alternate Currency Commitment as so reduced. If the Aggregate Commitment as so
reduced is less than the aggregate amount of all outstanding Letters of Credit,
the Borrower shall be required to deposit cash collateral in a cash collateral
account opened by the Administrative Agent in an amount equal to the aggregate
then undrawn and unexpired amount of such Letters of Credit. Such cash
collateral shall be applied in accordance with Section 11.2(b). Any reduction of
the Aggregate Commitment to zero shall be accompanied by payment of all
outstanding Revolving Credit Loans, Alternative Currency Loans and Swingline
Loans (and furnishing of cash collateral satisfactory to the Administrative
Agent for all L/C Obligations) and shall result in the termination of the
Commitments and Credit Facility. Such cash collateral shall be applied in
accordance with Section 11.2(b). If the reduction of the Aggregate Commitment or
the Alternative Currency Commitment, as applicable requires the repayment of any
LIBOR Rate Loan, such repayment shall be accompanied by any amount required to
be paid pursuant to Section 4.11 hereof.
SECTION 2.8 Termination of Credit Facility. The Credit Facility shall
terminate on the earliest of (a) January 15, 2009, (b) the date of termination
by the Borrower pursuant to Section 2.7 or (c) the date of termination by the
Administrative Agent on behalf of the Lenders pursuant to Section 11.2(a).
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C Commitment. Subject to the terms and conditions hereof, the
Issuing Lender, in reliance on the agreements of the other Lenders set forth in
Section 3.4(a), agrees to issue standby letters of credit ("Letters of Credit")
for the account of the Borrower on any Business Day from the Closing Date
through but not including the Revolving Credit Termination Date in such form as
may be approved from time to time by the Issuing Lender; provided, that the
Issuing Lender shall have no obligation to issue any Letter of Credit if, after
giving effect to such issuance, based upon the Dollar Amount of all outstanding
Loans and L/C Obligations, (a) the L/C Obligations would exceed the lesser of
(i) the L/C Commitment or (ii) the Aggregate Commitment less the aggregate
principal amount of all outstanding Swingline Loans, Revolving Credit Loans and
Alternative Currency Loans or (b) the Available Commitment of any Lender would
be less than zero. Each Letter of Credit shall (i) be denominated in Dollars in
a minimum amount of $100,000, (ii) be a standby letter of credit issued to
support obligations of the Borrower or any of its Subsidiaries, contingent or
otherwise, incurred in the ordinary course of business, (iii) expire on a date
satisfactory to the Issuing Lender, which date shall be no later than ninety
(90) days prior to the Revolving Credit Termination Date and (iv) be subject to
the Uniform Customs and/or ISP 98, as set forth in the Application or as
determined by the Issuing Lender, and, to the extent not inconsistent therewith,
the laws of the State of North Carolina. The Issuing Lender shall not at any
time be obligated to issue any Letter of Credit hereunder if such issuance would
conflict with, or cause the Issuing Lender or any L/C Participant to exceed any
limits imposed by, any Applicable Law. References herein to "issue" and
derivations thereof with respect to Letters of Credit shall also include
extensions or modifications of any existing Letters of Credit, unless the
context otherwise requires.
SECTION 3.2 Procedure for Issuance of Letters of Credit. The Borrower, may
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at the Administrative Agent's Office an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may reasonably request. Upon receipt of any Application, the
Issuing Lender shall process such Application and the certificates, documents
and other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall, subject to Section 3.1 and
Article V hereof, promptly issue the Letter of Credit requested thereby (but in
no event shall the Issuing Lender be required to issue any Letter of Credit
earlier than four (4) Business Days after its receipt of the Application
therefor and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed by the Issuing Lender
and the Borrower; provided that the Issuing Lender shall not issue a Letter of
Credit from and after the date which is one (1) day after it has received
written notice from the Administrative Agent (upon the request of the Required
Lenders) that one or more of the applicable conditions to Extensions of Credit
specified in Section 5.3 is not then satisfied until such conditions are
satisfied or waived in accordance with the provisions of this Agreement (and the
Issuing Lender shall be entitled to conclusively rely on any such notice and
shall have no obligation to independently investigate the accuracy of such
notice and shall have no liability to the Borrower in respect thereof if such
notice proves to be inaccurate). The Issuing Lender shall promptly furnish to
the Borrower a copy of such Letter of Credit and promptly notify each Lender of
the issuance and upon request by any Lender, furnish to such Lender a copy of
such Letter of Credit and the amount of such Lender's participation therein.
SECTION 3.3 Commissions and Other Charges.
(a) The Borrower shall pay to the Administrative Agent, for the account of
the Issuing Lender and the L/C Participants, a letter of credit commission with
respect to each Letter of Credit in an amount equal to the face amount of such
Letter of Credit multiplied by the Applicable Margin with respect to LIBOR Rate
Loans (determined on a per annum basis). Such commission shall be payable
quarterly in arrears on the last Business Day of each calendar quarter and on
the Revolving Credit Termination Date. The Administrative Agent shall, promptly
following its receipt thereof, distribute to the Issuing Lender and the L/C
Participants all commissions received pursuant to this Section 3.3(a) in
accordance with their respective Commitment Percentages.
(b) In addition to the foregoing commission, the Borrower shall pay the
Issuing Lender an issuance fee with respect to each Letter of Credit in an
amount equal to the face amount of such Letter of Credit multiplied by
one-eighth of one percent (0.125%) per annum. Such issuance fee shall be payable
quarterly in arrears on the last Business Day of each calendar quarter and on
the Revolving Credit Termination Date.
(c) In addition to the foregoing fees and commissions, the Borrower shall
pay or reimburse the Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by the Issuing Lender in issuing, effecting
payment under, amending or otherwise administering any Letter of Credit.
SECTION 3.4 L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Commitment Percentage in
the Issuing Lender's obligations and rights under and in respect of each Letter
of Credit issued hereunder and the amount of each draft paid by the Issuing
Lender thereunder. Each L/C Participant unconditionally and irrevocably agrees
with the Issuing Lender that, if a draft is paid under any Letter of Credit for
which the Issuing Lender is not reimbursed in full by the Borrower through a
Revolving Credit Loan or otherwise in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Commitment Percentage of the amount of such draft, or any
part thereof, which is not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify each L/C Participant of the amount
and due date of such required payment and such L/C Participant shall pay to the
Issuing Lender the amount specified on the applicable due date. If any such
amount is paid to the Issuing Lender after the date such payment is due, such
L/C Participant shall pay to the Issuing Lender on demand, in addition to such
amount, the product of (i) such amount, times (ii) the daily average Federal
Funds Rate as determined by the Administrative Agent during the period from and
including the date such payment is due to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. A certificate of the Issuing Lender with respect to
any amounts owing under this Section 3.4(b) shall be conclusive in the absence
of manifest error. With respect to payment to the Issuing Lender of the
unreimbursed amounts described in this Section 3.4(b), if the L/C Participants
receive notice that any such payment is due (A) prior to 1:00 p.m. (Charlotte
time) on any Business Day, such payment shall be due that Business Day, and (B)
after 1:00 p.m. (Charlotte time) on any Business Day, such payment shall be due
on the following Business Day.
(c) Whenever, at any time after the Issuing Lender has made payment under
any Letter of Credit and has received from any L/C Participant its Commitment
Percentage of such payment in accordance with this Section 3.4, the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise), or any payment of interest on account thereof,
the Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; provided, that in the event that any such payment received by the
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
SECTION 3.5 Reimbursement Obligation of the Borrower. In the event of any
drawing under any Letter of Credit, the Borrower agrees to reimburse (either
with the proceeds of a Revolving Credit Loan as provided for in this Section 3.5
or with funds from other sources), in the same day funds, the Issuing Lender on
each date on which the Issuing Lender notifies the Borrower of the date and
amount of a draft paid under any Letter of Credit for the amount of (a) such
draft so paid and (b) any amounts referred to in Section 3.3(c) incurred by the
Issuing Lender in connection with such payment. Unless the Borrower shall
immediately notify the Issuing Lender that the Borrower intends to reimburse the
Issuing Lender for such drawing from other sources or funds, the Borrower shall
be deemed to have timely given a Notice of Borrowing to the Administrative Agent
requesting that the Lenders make a Revolving Credit Loan bearing interest at the
Base Rate on such date in the amount of (a) such draft so paid and (b) any
amounts referred to in Section 3.3(c) incurred by the Issuing Lender in
connection with such payment, and the Lenders shall make a Revolving Credit Loan
bearing interest at the Base Rate in such amount, the proceeds of which shall be
applied to reimburse the Issuing Lender for the amount of the related drawing
and costs and expenses. Each Lender acknowledges and agrees that its obligation
to fund a Revolving Credit Loan in accordance with this Section 3.5 to reimburse
the Issuing Lender for any draft paid under a Letter of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, non-satisfaction of the conditions set forth in
Section 2.4(a) or Article V. If the Borrower has elected to pay the amount of
such drawing with funds from other sources and shall fail to reimburse the
Issuing Lender as provided above, the unreimbursed amount of such drawing shall
bear interest at the rate which would be payable on any outstanding Base Rate
Loans which were then overdue from the date such amounts become payable (whether
at stated maturity, by acceleration or otherwise) until payment in full.
SECTION 3.6 Obligations Absolute. The Borrower's obligations under this
Article III (including without limitation the Reimbursement Obligation) shall be
absolute and unconditional under any and all circumstances and irrespective of
any set-off, counterclaim or defense to payment which the Borrower may have or
have had against the Issuing Lender or any beneficiary of a Letter of Credit or
any other Person. The Borrower also agrees that the Issuing Lender and the L/C
Participants shall not be responsible for, and the Borrower's Reimbursement
Obligation under Section 3.5 shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even though
such documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of the Borrower against any beneficiary of such Letter of
Credit or any such transferee. The Issuing Lender shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions caused by the Issuing Lender's gross
negligence or willful misconduct. The Borrower agrees that any action taken or
omitted by the Issuing Lender under or in connection with any Letter of Credit
or the related drafts or documents, if done in the absence of gross negligence
or willful misconduct, shall be binding on the Borrower and shall not result in
any liability of the Issuing Lender or any L/C Participant to the Borrower. The
responsibility of the Issuing Lender to the Borrower in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with such
Letter of Credit.
SECTION 3.7 Effect of Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Article III, the provisions of this Article III shall apply.
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1 Interest.
(a) Interest Rate Options. Subject to the provisions of this Section 4.1,
at the election of the Borrower, (i) Revolving Credit Loans shall bear interest
at (A) the Base Rate plus the Applicable Margin as set forth in Section 4.1(c)
or (B) the LIBOR Rate plus the Applicable Margin as set forth in Section 4.1(c),
(ii) Alternative Currency Loans shall bear interest at the LIBOR Rate plus the
Applicable Margin as set forth in Section 4.1(c) and (iii) Swingline Loans shall
bear interest at the Base Rate plus the Applicable Margin as set forth in
Section 4.1(c); provided that the LIBOR Rate shall not be available until three
(3) Business Days after the Closing Date. The Borrower shall select the rate of
interest and Interest Period, if any, applicable to any Loan at the time a
Notice of Borrowing is given pursuant to Section 2.4 or 3.5 or at the time a
Notice of Conversion/Continuation is given pursuant to Section 4.2. Each Loan or
portion thereof bearing interest based on the Base Rate (including, without
limitation, each Swingline Loan) shall be a "Base Rate Loan" and each Loan or
portion thereof bearing interest based on the LIBOR Rate shall be a "LIBOR Rate
Loan." Any Revolving Credit Loan or any portion thereof as to which the Borrower
has not duly specified an interest rate as provided herein shall be deemed a
Base Rate Loan denominated in Dollars. Any Alternative Currency Loan or any
portion thereof as to which the Borrower has not duly specified an interest rate
as provided herein shall be deemed a LIBOR Rate Loan with an Interest Period of
one (1) month and shall be made four (4) Business Days after receipt of such
notice
(b) Interest Periods. In connection with each LIBOR Rate Loan, the
Borrower, by giving notice at the times described in Section 4.1(a), shall elect
an interest period (each, an "Interest Period") to be applicable to such Loan,
which Interest Period shall be a period of one (1), two (2), three (3), or six
(6) months (or, if available to all of the Lenders, nine (9) months or twelve
(12) months) with respect to each LIBOR Rate Loan; provided that:
(i) the Interest Period shall commence on the date of advance of or
conversion to any LIBOR Rate Loan and, in the case of immediately successive
Interest Periods, each successive Interest Period shall commence on the date on
which the immediately preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next succeeding
Business Day; provided, that if any Interest Period with respect to a LIBOR Rate
Loan would otherwise expire on a day that is not a Business Day but is a day of
the month after which no further Business Day occurs in such month, such
Interest Period shall expire on the immediately preceding Business Day;
(iii) any Interest Period with respect to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the relevant calendar
month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the Revolving Credit
Termination Date; and
(v) there shall be no more than six (6) Interest Periods in effect at
any time.
(c) Applicable Margin. The Applicable Margin provided for in Section 4.1(a)
with respect to any Loan (the "Applicable Margin") shall be based upon the table
set forth below and shall be determined and adjusted quarterly on the date (each
a "Calculation Date") ten (10) Business Days after the date by which the
Borrower provides an Officer's Compliance Certificate for the most recently
ended fiscal quarter of the Borrower; provided, however, that (a) the initial
Applicable Margin shall be based on Pricing Level IV (as shown below) and shall
remain at Pricing Level IV until the first Calculation Date occurring after the
Closing Date and, thereafter the Pricing Level shall be determined by reference
to the Leverage Ratio (as calculated pursuant to the formula set forth in
Section 9.1) as of the last day of the most recently ended fiscal quarter of the
Borrower preceding the applicable Calculation Date, and (b) if the Borrower
fails to provide the Officer's Compliance Certificate as required by Section 7.2
for the most recently ended fiscal quarter of the Borrower preceding the
applicable Calculation Date, the Applicable Margin from such Calculation Date
shall be based on Pricing Level I (as shown below) until such time as an
appropriate Officer's Compliance Certificate is provided, at which time the
Pricing Level shall be determined by reference to the Leverage Ratio as of the
last day of the most recently ended fiscal quarter of the Borrower preceding
such Calculation Date. The Applicable Margin shall be effective from one
Calculation Date until the next Calculation Date. Any adjustment in the
Applicable Margin shall be applicable to all Extensions of Credit then existing
or subsequently made or issued.
- ----------------------------- ----------------------------- ---------------------------- ---------------------------
Pricing Level Leverage Ratio LIBOR Rate Base Rate
Applicable Margin Applicable Margin
- ----------------------------- ----------------------------- ---------------------------- ---------------------------
I Greater than 2.00 to 1.00 1.85% 1.00%
- ----------------------------- ----------------------------- ---------------------------- ---------------------------
II Greater than 1.50 to 1.00
but less than or equal to
2.00 to 1.00 1.60% 0.75%
- ----------------------------- ----------------------------- ---------------------------- ---------------------------
III Greater than 1.00 to 1.00
but less than or equal to
1.50 to 1.00 1.35% 0.50%
- ----------------------------- ----------------------------- ---------------------------- ---------------------------
IV Less than or equal to 1.00
to 1.00 1.10% 0.25%
- ----------------------------- ----------------------------- ---------------------------- ---------------------------
(d) Default Rate. Subject to Section 11.3, at the discretion of the
Administrative Agent or as directed by the Required Lenders, upon the occurrence
and during the continuance of any Event of Default, (i) the Borrower shall no
longer have the option to request LIBOR Rate Loans (including, without
limitation, Alternative Currency Loans) or Swingline Loans, (ii) all outstanding
LIBOR Rate Loans shall bear interest at a rate per annum two percent (2%) in
excess of the rate then applicable to LIBOR Rate Loans until the end of the
applicable Interest Period and thereafter at a rate equal to two percent (2%) in
excess of the rate then applicable to Base Rate Loans, and (iii) all outstanding
Base Rate Loans and other Obligations arising hereunder or under any other Loan
Document shall bear interest at a rate per annum equal to two percent (2%) in
excess of the rate then applicable to Base Rate Loans or such other Obligations
arising hereunder or under any other Loan Document; provided that clauses (i),
(ii) and (iii) shall apply immediately upon the occurrence and during the
continuance of any Event of Default under Sections 11.1(a), 11.1(b), 11.1(i) and
11.1(j). Interest shall continue to accrue on the Notes after the filing by or
against the Borrower of any petition seeking any relief in bankruptcy or under
any act or law pertaining to insolvency or debtor relief, whether state, federal
or foreign.
(e) Interest Payment and Computation. Interest on each Base Rate Loan shall
be payable in arrears on the last Business Day of each calendar quarter
commencing December 31, 2005; and interest on each LIBOR Rate Loan shall be
payable on the last day of each Interest Period applicable thereto, and if such
Interest Period extends over three (3) months, at the end of each three (3)
month interval during such Interest Period. Interest on LIBOR Rate Loans and all
fees payable hereunder shall be computed on the basis of a 360-day year and
assessed for the actual number of days elapsed (except, to the extent that
Pounds Sterling is agreed upon as an Alternative Currency pursuant to the
definition thereof, for Alternative Currency Loans denominated in Pounds
Sterling which shall be computed on the basis of a 365/66-day year) and interest
on Base Rate Loans shall be computed on the basis of a 365/66-day year and
assessed for the actual number of days elapsed.
(f) Maximum Rate. In no contingency or event whatsoever shall the aggregate
of all amounts deemed interest hereunder or under any of the Notes charged or
collected pursuant to the terms of this Agreement or pursuant to any of the
Notes exceed the highest rate permissible under any Applicable Law which a court
of competent jurisdiction shall, in a final determination, deem applicable
hereto. In the event that such a court determines that the Lenders have charged
or received interest hereunder in excess of the highest applicable rate, the
rate in effect hereunder shall automatically be reduced to the maximum rate
permitted by Applicable Law and the Lenders shall at the Administrative Agent's
option (i) promptly refund to the Borrower any interest received by the Lenders
in excess of the maximum lawful rate or (ii) apply such excess to the principal
balance of the Obligations on a pro rata basis. It is the intent hereof that the
Borrower not pay or contract to pay, and that neither the Administrative Agent
nor any Lender receive or contract to receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may be paid by the Borrower
under Applicable Law.
(g) Basis of Accrual. Subject to Section 1.3 hereof, if the basis of
accrual of interest or fees expressed in this Agreement with respect to the
currency of any state that becomes a Participating Member State, in the judgment
of the Administrative Agent, shall not be available because interest rate quotes
for the applicable national currency unit are no longer provided, or shall be
inconsistent with any convention or practice in the London Interbank Market for
the basis of accrual of interest or fees in respect of the euro, such convention
or practice shall replace such expressed basis effective as of and from the date
on which such state becomes a Participating Member State; provided that if any
Loan in the currency of such state is outstanding immediately prior to such
date, such replacement shall take effect, with respect to such Loan, at the end
of the then current Interest Period.
SECTION 4.2 Notice and Manner of Conversion or Continuation of Loans.
Provided that no Default or Event of Default has occurred and is then
continuing, the Borrower shall have the option to (a) convert at any time
following the third Business Day after the Closing Date all or any portion of
any outstanding Base Rate Loans (other than Swingline Loans) in a principal
amount equal to $3,000,000 or any whole multiple of $1,000,000 in excess thereof
into one or more LIBOR Rate Loans denominated in Dollars, (b) upon the
expiration of any Interest Period, convert all or any part of its outstanding
LIBOR Rate Loans denominated in Dollars in a principal amount equal to
$3,000,000 or a whole multiple of $1,000,000 in excess thereof into Base Rate
Loans (other than Swingline Loans), (c) upon the expiration of any Interest
Period, continue any LIBOR Rate Loan denominated in Dollars in a principal
amount of $3,000,000 or any whole multiple of $1,000,000 in excess thereof as a
LIBOR Rate Loan denominated in Dollars or (d) upon the expiration of any
Interest Period, continue any LIBOR Rate Loan denominated in any Alternative
Currency in a principal amount of $2,000,000 or any whole multiple of $1,000,000
in excess thereof (based on the Alternative Currency Amount thereof) as a LIBOR
Rate Loan in the same Alternative Currency. Whenever the Borrower desires to
convert or continue Loans as provided above, the Borrower shall give the
Administrative Agent irrevocable prior written notice in the form attached as
Exhibit E (a "Notice of Conversion/Continuation") not later than 12:00 p.m.
(Charlotte time) four (4) Business Days (with respect to any Alternative
Currency Loan) and three (3) Business Days (with respect to any Loan denominated
in Dollars) before the day on which a proposed conversion or continuation of
such Loan is to be effective specifying (A) the Loans to be converted or
continued, and, in the case of any LIBOR Rate Loan to be converted or continued,
the last day of the Interest Period therefor, (B) the Permitted Currency in
which such Loan is denominated, (C) the effective date of such conversion or
continuation (which shall be a Business Day), (D) the principal amount of such
Loans to be converted or continued, and (E) the Interest Period to be applicable
to such converted or continued LIBOR Rate Loan. The Administrative Agent shall
promptly notify the Lenders of such Notice of Conversion/Continuation.
SECTION 4.3 Fees.
(a) Commitment Fee. Commencing on the Closing Date, the Borrower shall pay
to the Administrative Agent, for the account of the Lenders, a non-refundable
commitment fee at a rate per annum equal to the applicable rate based upon the
table set forth below (the "Commitment Fee Rate") on the average daily unused
portion of the Aggregate Commitment; provided that the amount of outstanding
Swingline Loans and Alternative Currency Loans shall not be considered usage of
the Revolving Credit Commitment for the purpose of calculating such commitment
fee with regard to any Lender other than the Swingline Lender (as to outstanding
Swingling Loans) and the Alternative Currency Lender (as to outstanding
Alternative Currency Loans). The commitment fee shall be payable in arrears on
the last Business Day of each calendar quarter during the term of this Agreement
commencing December 31, 2005, and on the Revolving Credit Termination Date. Such
commitment fee shall be distributed by the Administrative Agent to the Lenders
pro rata in accordance with the Lenders' respective Commitment Percentages. The
Commitment Fee Rate shall be determined and adjusted quarterly on each
Calculation Date; provided, however, that (a) the initial Commitment Fee Rate
shall be based on Pricing Level IV (as shown below) and shall remain at Pricing
Level IV until the first Calculation Date occurring after the Closing Date and
thereafter the Pricing Level shall be determined by reference to the Leverage
Ratio (as calculated pursuant to the formula set forth in Section 9.1) as of the
last day of the most recently ended fiscal quarter of the Borrower preceding the
applicable Calculation Date, and (b) if the Borrower fails to provide the
Officer's Compliance Certificate as required by Section 7.2 for the most
recently ended fiscal quarter of the Borrower preceding the applicable
Calculation Date, the Commitment Fee Rate from such Calculation Date shall be
based on Pricing Level I (as shown below) until such time as an appropriate
Officer's Compliance Certificate is provided, at which time the Pricing Level
shall be determined by reference to the Leverage Ratio as of the last day of the
most recently ended fiscal quarter of the Borrower preceding such Calculation
Date. The Commitment Fee Rate shall be effective from one Calculation Date until
the next Calculation Date.
- --------------------- ---------------------------------------------------------------- -----------------------------
Pricing Level Leverage Ratio Commitment Fee Rate
- --------------------- ---------------------------------------------------------------- -----------------------------
I Greater than 2.00 to 1.00 0.35%
- --------------------- ---------------------------------------------------------------- -----------------------------
II Greater than 1.50 to 1.00 but less than or equal to 2.00 to 0.30%
1.00
- --------------------- ---------------------------------------------------------------- -----------------------------
III Greater than 1.00 to 1.00 but less than or equal to 1.50 to 0.25%
1.00
- --------------------- ---------------------------------------------------------------- -----------------------------
IV Less than or equal to 1.00 to 1.00 0.20%
- --------------------- ---------------------------------------------------------------- -----------------------------
(b) Administrative Agent's and Other Fees. In order to compensate the
Administrative Agent for structuring and syndicating the Extensions of Credit
and for its obligations hereunder, the Borrower agrees to pay to the
Administrative Agent, for its account, the fees set forth in the separate fee
letter agreement executed by the Borrower and the Administrative Agent dated
November 4, 2005.
SECTION 4.4 Manner of Payment.
(a) Loans and Letters of Credit Denominated in Dollars. Each payment by the
Borrower on account of the principal of or interest on any Loan or Letter of
Credit denominated in Dollars or of any fee, commission or other amounts
(including the Reimbursement Obligation with respect to any Letter of Credit
denominated in Dollars) payable to the Lenders under this Agreement or any Note
(except as set forth in Section 4.4(b)) shall be made in Dollars not later than
1:00 p.m. (Charlotte time) on the date specified for payment under this
Agreement to the Administrative Agent at the Administrative Agent's Office for
the account of the Lenders (other than as set forth below) pro rata in
accordance with their respective Commitment Percentages (except as specified
below) in immediately available funds and shall be made without any set-off,
counterclaim or deduction whatsoever. Any payment received after such time but
before 2:00 p.m. (Charlotte time) on such day shall be deemed a payment on such
date for the purposes of Section 11.1, but for all other purposes shall be
deemed to have been made on the next succeeding Business Day. Any payment
received after 2:00 p.m. (Charlotte time) shall be deemed to have been made on
the next succeeding Business Day for all purposes. With respect to each Letter
of Credit denominated in Dollars, each payment to the Administrative Agent of
the Issuing Lender's fees or L/C Participants' commissions shall be made in like
manner, but for the account of the Issuing Lender or the L/C Participants, as
the case may be.
(b) Alternative Currency Loans. Each payment by the Borrower on account of
the principal of or interest on the Alternative Currency Loans shall be made in
such Alternative Currency not later than 11:00 a.m. (the time of the
Administrative Agent's Correspondent) on the date specified for payment under
this Agreement to the Administrative Agent's account with the Administrative
Agent's Correspondent for the account of the Alternative Currency Lender (other
than as set forth below) in immediately available funds, and shall be made
without any set-off, counterclaim or deduction whatsoever. Any payment received
after such time but before 12:00 noon (the time of the Administrative Agent's
Correspondent) on such day shall be deemed a payment on such date for the
purposes of Section 11.1, but for all other purposes shall be deemed to have
been made on the next succeeding Business Day. Any payment received after 12:00
noon (the time of the Administrative Agent's Correspondent) shall be deemed to
have been made on the next succeeding Business Day for all purposes.
(c) Pro Rata Treatment. Upon receipt by the Administrative Agent of each
such payment, the Administrative Agent shall distribute to each Lender, at its
address for notices set forth herein, its pro rata share of such payment in
accordance with such Lender's Commitment Percentage (except as specified below)
and shall wire advice of the amount of such credit to each Lender. Each payment
to the Administrative Agent of the Issuing Lender's fees or L/C Participants'
commissions shall be made in like manner, but for the account of the Issuing
Lender or the L/C Participants, as the case may be. Each payment to the
Administrative Agent of Administrative Agent's fees or expenses shall be made
for the account of the Administrative Agent. Each payment to the Administrative
Agent with respect to the Swingline Note (including, without limitation, the
Swingline Lender's fees or expenses) shall be made for the account of the
Swingline Lender. Each payment to the Administrative Agent with respect to the
Alternative Currency Note shall be made for the account of the Alternative
Currency Lender. Any amount payable to any Lender under Sections 4.10, 4.11,
4.12, 4.13 or 13.2 shall be paid to the Administrative Agent for the account of
the applicable Lender. Subject to Section 4.1(b)(ii), if any payment under this
Agreement or any Note shall be specified to be made upon a day which is not a
Business Day, it shall be made on the next succeeding day which is a Business
Day and such extension of time shall in such case be included in computing any
interest if payable along with such payment.
SECTION 4.5 Crediting of Payments and Proceeds. In the event that the
Borrower shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 11.2, all payments received by the
Lenders upon the Notes and the other Obligations and all net proceeds from the
enforcement of the Obligations shall be applied: (a) first to all expenses then
due and payable by the Borrower hereunder and under the other Loan Documents,
(b) then to all indemnity obligations then due and payable by the Borrower
hereunder and under the other Loan Documents, (c) then to all Administrative
Agent's and Issuing Lender's fees then due and payable, (d) then to all
commitment and other fees and commissions then due and payable, (e) then to
accrued and unpaid interest on the Swingline Note to the Swingline Lender and
the Alternative Currency Note to the Alternative Currency Lender (pro rata in
accordance with all such amounts due), (f) then to the principal amount
outstanding under the Swingline Note to the Swingline Lender and the Alternative
Currency Note to the Alternative Currency Lender (pro rata in accordance with
all such amounts due), (g) then to accrued and unpaid interest on the Revolving
Credit Notes, accrued and unpaid interest on the Reimbursement Obligation and
any Hedging Obligations (including any termination payments and any accrued and
unpaid interest thereon) (pro rata in accordance with all such amounts due), (h)
then to the principal amount of the Revolving Credit Notes and Reimbursement
Obligation (pro rata in accordance with all such amounts due) and (i) then to
the cash collateral account described in Section 11.2(b) hereof to the extent of
any L/C Obligations then outstanding, in that order.
SECTION 4.6 Adjustments. If any Lender (a "Benefited Lender") shall at any
time receive any payment of all or part of the Obligations owing to it, or
interest thereon, or if any Lender shall at any time receive any collateral in
respect to the Obligations owing to it (whether voluntarily or involuntarily, by
set-off or otherwise) (other than pursuant to Sections 4.8, 4.9, 4.10, 4.11,
4.12, 4.13 or 13.2 hereof) in a greater proportion than any such payment to and
collateral received by any other Lender, if any, in respect of the similar
Obligations owing to such other Lender, or interest thereon, such Benefited
Lender shall purchase for cash from the other Lenders such portion of each such
other Lender's Extensions of Credit, or shall provide such other Lenders with
the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefited Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders; provided, that
if all or any portion of such excess payment or benefits is thereafter recovered
from such Benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned to the extent of such recovery, but without
interest. The Borrower agrees that each Lender so purchasing a portion of
another Lender's Extensions of Credit may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such portion
as fully as if such Lender were the direct holder of such portion.
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent. The obligations of the Lenders
under this Agreement to make the Loans and issue or participate in Letters of
Credit are several and are not joint or joint and several. Unless the
Administrative Agent shall have received notice from a Lender prior to a
proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
accordance with Section 2.4(b) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to (a) with respect
to any Loan denominated in Dollars, the product of (i) the amount not made
available by such Lender in accordance with the terms hereof, times (ii) the
daily average Federal Funds Rate during such period as determined by the
Administrative Agent, times (iii) a fraction the numerator of which is the
number of days that elapse from and including such borrowing date to the date on
which such amount not made available by such Lender in accordance with the terms
hereof shall have become immediately available to the Administrative Agent and
the denominator of which is 360 and (b) with respect to any Loan denominated in
an Alternative Currency, the amount not made available by such Lender in
accordance with the terms hereof and interest thereon at a rate per annum equal
to the Administrative Agent's aggregate marginal cost (including the cost of
maintaining any required reserves or deposit insurance and of any fees,
penalties, overdraft charges or other costs or expenses incurred by the
Administrative Agent as a result of the failure to deliver funds hereunder) of
carrying such amount. A certificate of the Administrative Agent with respect to
any amounts owing under this Section 4.7 shall be conclusive, absent manifest
error. If such Lender's Commitment Percentage of such borrowing is not made
available to the Administrative Agent by such Lender within three (3) Business
Days after such borrowing date, the Administrative Agent shall be entitled to
recover such amount made available by the Administrative Agent with interest
thereon at the rate per annum applicable to Base Rate Loans hereunder, on
demand, from the Borrower. The failure of any Lender to make available its
Commitment Percentage of any Loan requested by the Borrower shall not relieve it
or any other Lender of its obligation, if any, hereunder to make its Commitment
Percentage of such Loan available on the borrowing date, but no Lender shall be
responsible for the failure of any other Lender to make its Commitment
Percentage of such Loan available on the borrowing date. Notwithstanding
anything set forth herein to the contrary, any Lender that fails to make
available its Commitment Percentage of any Loan shall not (a) have any voting or
consent rights under or with respect to any Loan Document or (b) constitute a
"Lender" (or be included in the calculation of Required Lenders hereunder) for
any voting or consent rights under or with respect to any Loan Document.
SECTION 4.8. Redenomination of Alternative Currency Loans.
(a) Conversion to the Base Rate. If any Alternative Currency Loan is
required to bear interest at the Base Rate rather than the LIBOR Rate pursuant
to Section 4.1(d), Section 4.10 or any other applicable provision hereof, such
Loan shall be funded in Dollars in an amount equal to the Dollar Amount of such
Alternative Currency Loan, all subject to the provisions of Section 2.5(b). The
Borrower shall reimburse the Alternative Currency Lender or the Lenders, as
applicable, upon any such conversion for any amounts required to be paid under
Section 4.11.
(b) Redenomination of Loans and Obligations. Subject to Section 1.3 hereof,
(i) any Loan to be denominated in the currency of the applicable Participating
Member State shall be made in the euro and (ii) any obligation of any party
under this Agreement or any other Loan Document which has been denominated in
the currency of a Participating Member State shall be redenominated into the
euro.
(c) Further Assurances. The terms and provisions of this Agreement will be
subject to such reasonable changes of construction as determined by the
Administrative Agent to reflect the implementation of the EMU in any
Participating Member State or any market conventions relating to the fixing
and/or calculation of interest being changed or replaced and to reflect market
practice at that time, and subject thereto, to put the Administrative Agent, the
Lenders and the Borrower in the same position, so far as possible, that they
would have been if such implementation had not occurred. In connection
therewith, the Borrower agrees, at the request of the Administrative Agent, at
the time of or at any time following the implementation of the EMU in any
Participating Member State or any market conventions relating to the fixing
and/or calculation of interest being changed or replaced, to enter into an
agreement amending this Agreement in such manner as the Administrative Agent
shall reasonably request.
SECTION 4.9. Regulatory Limitation. In the event, as a result of increases
in the value of Alternative Currencies against the Dollar or for any other
reason, the obligation of any of the Lenders to make Loans (taking into account
the Dollar Amount of the Obligations and all other indebtedness required to be
aggregated under 12 U.S.C.A. ss.84, as amended, the regulations promulgated
thereunder and any other Applicable Law) is determined by such Lender to exceed
its then applicable legal lending limit under 12 U.S.C.A. ss.84, as amended, and
the regulations promulgated thereunder, or any other Applicable Law, the amount
of additional Extensions of Credit such Lender shall be obligated to make or
issue or participate in hereunder shall immediately be reduced to the maximum
amount which such Lender may legally advance (as determined by such Lender), the
obligation of each of the remaining Lenders hereunder shall be proportionately
reduced, based on their applicable Commitment Percentages and, to the extent
necessary under such laws and regulations (as determined by each of the Lenders,
with respect to the applicability of such laws and regulations to itself), and
the Borrower shall reduce, or cause to be reduced, complying to the extent
practicable with the remaining provisions hereof, the Obligations outstanding
hereunder by an amount sufficient to comply with such maximum amounts.
SECTION 4.10 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate and Alternative Currency
Availability. If with respect to any Interest Period for any LIBOR Rate Loan,
the Administrative Agent, the Alternative Currency Lender or any Lender (after
consultation with the Administrative Agent) shall determine that (i) by reason
of circumstances affecting the foreign exchange and interbank markets generally,
deposits in eurodollars or an Alternative Currency in the applicable amounts are
not being quoted via Dow Jones Market Screen 3750 or the applicable Reuters
Screen Page or offered to the Administrative Agent or such Lender for such
Interest Period, (ii) a fundamental change has occurred in the foreign exchange
or interbank markets with respect to any Alternative Currency (including,
without limitation, changes in national or international financial, political or
economic conditions or currency exchange rates or exchange controls) or (iii) it
has become otherwise materially impractical for the Alternative Currency Lender
to make such Alternative Currency Loans, then the Administrative Agent shall
forthwith give notice thereof to the Borrower. Thereafter, until the
Administrative Agent notifies the Borrower that such circumstances no longer
exist, the obligation of the Lenders or the Alternative Currency Lender, as
applicable, to make LIBOR Rate Loans or Alternative Currency Loans, as
applicable, and the right of the Borrower to convert any Loan to or continue any
Loan as a LIBOR Rate Loan or an Alternative Currency Loan, as applicable, shall
be suspended, and the Borrower shall repay in full (or cause to be repaid in
full) the then outstanding principal amount of each such LIBOR Rate Loan or
Alternative Currency Loan, as applicable, together with accrued interest
thereon, on the last day of the then current Interest Period applicable to such
LIBOR Rate Loan or Alternative Currency Loan, as applicable, or convert the then
outstanding principal amount of each such LIBOR Rate Loan or Alternative
Currency Loan, as applicable, to a Base Rate Loan in Dollars as of the last day
of such Interest Period; provided that if the Borrower elects to make such
conversion, the Borrower shall pay to the Administrative Agent, the Alternative
Currency Lender and the Lenders any and all costs, fees and other expenses
incurred by the Administrative Agent, the Alternative Currency Lender and the
Lenders in effecting such conversion.
(b) Laws Affecting LIBOR Rate and Alternative Currency Availability. If,
after the date hereof, the introduction of, or any change in, any Applicable Law
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 of the Lenders
(or any of their respective Lending Offices) with any request or directive
(whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, shall make it unlawful or impossible for any
of the Lenders (or any of their respective Lending Offices) to honor its
obligations hereunder to make or maintain any LIBOR Rate Loan or any Alternative
Currency Loan, such Lender shall promptly give notice thereof to the
Administrative Agent and the Administrative Agent shall promptly give notice to
the Borrower, and the other Lenders. Thereafter, until the Administrative Agent
notifies the Borrower that such circumstances no longer exist, (i) the
obligations of the Lenders or the Alternative Currency Lender, as applicable, to
make LIBOR Rate Loans or Alternative Currency Loans, as applicable, and the
right of the Borrower to convert any Loan or continue any Loan as a LIBOR Rate
Loan or an Alternative Currency Loan, as applicable, shall be suspended and
thereafter the Borrower may select only Base Rate Loans hereunder, and (ii) if
any of the Lenders or the Alternative Currency Lender, as applicable, may not
lawfully continue to maintain a LIBOR Rate Loan or an Alternative Currency Loan,
as applicable, to the end of the then current Interest Period applicable thereto
as a LIBOR Rate Loan or Alternative Currency Loan, as applicable, the applicable
LIBOR Rate Loan or an Alternative Currency Loan, as applicable, shall
immediately be converted to a Base Rate Loan in Dollars for the remainder of
such Interest Period; provided that if the Borrower elects to make such
conversion, the Borrower shall pay to the Administrative Agent, the Alternative
Currency Lender and the Lenders any and all costs, fees and other expenses
incurred by the Administrative Agent, the Alternative Currency Lender and the
Lenders in effecting such conversion, including any amounts required to be paid
under Section 4.11.
(c) Increased Costs. If, after the date hereof, the introduction of, or any
change in, any Applicable Law, or 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 of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of such Governmental
Authority, central bank or comparable agency:
(i) shall (except as provided in Section 4.13(e)) subject any of the
Lenders (or any of their respective Lending Offices) to any tax, duty or other
charge with respect to any Note, Letter of Credit or Application or shall change
the basis of taxation of payments to any of the Lenders (or any of their
respective Lending Offices) of the principal of or interest on any Note, Letter
of Credit or Application or any other amounts due under this Agreement in
respect thereof (except for changes in the rate of franchise tax or tax on the
overall net income of any of the Lenders or any of their respective Lending
Offices imposed by the jurisdiction in which such Lender is organized or is or
should be qualified to do business or such Lending Office is located); provided
that the Borrower shall not be obligated to pay any amounts pursuant to this
Section 4.10(c)(i) to the extent that such amounts are duplicative of any
amounts paid by the Borrower pursuant to Section 4.13; or
(ii) shall impose, modify or deem applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors of the Federal
Reserve System), special deposit, insurance or capital or similar requirement
against assets of, deposits with or for the account of, or credit extended by
any of the Lenders (or any of their respective Lending Offices) or shall impose
on any of the Lenders (or any of their respective Lending Offices) or the
foreign exchange and interbank markets any other condition affecting any Note;
and the result of any of the foregoing events described in clause (i) or (ii)
above is to increase the costs to any of the Lenders of maintaining any LIBOR
Rate Loan or an Alternative Currency Loan, as applicable, or issuing or
participating in Letters of Credit or to reduce the yield or amount of any sum
received or receivable by any of the Lenders under this Agreement or under the
Notes in respect of a LIBOR Rate Loan or an Alternative Currency Loan, as
applicable, or Letter of Credit or Application, then such Lender shall promptly
notify the Administrative Agent, and the Administrative Agent shall promptly
notify the Borrower of such fact and demand compensation therefor and, within
fifteen (15) days after such notice by the Administrative Agent, the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender or Lenders for such increased cost or reduction. The Administrative
Agent will promptly notify the Borrower of any event of which it has knowledge
which will entitle such Lender to compensation pursuant to this Section 4.10(c);
provided, that the Administrative Agent shall incur no liability whatsoever to
the Lenders or the Borrower in the event it fails to do so. The amount of such
compensation shall be determined, in the applicable Lender's reasonable
discretion, based upon the assumption that such Lender funded its Commitment
Percentage of the LIBOR Rate Loans or Alternative Currency Loans, as applicable,
in the London interbank market and using any reasonable attribution or averaging
methods which such Lender deems appropriate and practical. A certificate of such
Lender setting forth the basis for determining such amount or amounts necessary
to compensate such Lender shall be forwarded to the Borrower through the
Administrative Agent and shall be conclusively presumed to be correct save for
manifest error.
(d) Exchange Indemnification and Increased Costs. The Borrower shall, upon
demand from the Administrative Agent, pay to the Administrative Agent or any
applicable Lender, the amount of (i) any loss or cost or increased cost incurred
by the Administrative Agent or any applicable Lender, (ii) any reduction in any
amount payable to or in the effective return on the capital to the
Administrative Agent or any applicable Lender, (iii) any interest or any other
return, including principal, foregone by the Administrative Agent or any
applicable Lender as a result of the introduction of, change over to or
operation of the euro, or (iv) any currency exchange loss, that Administrative
Agent or any Lender sustains as a result of any payment being made by the
Borrower in a currency other than that originally extended to the Borrower. A
certificate of the Administrative Agent setting forth the basis for determining
such additional amount or amounts necessary to compensate the Administrative
Agent or the applicable Lender shall be conclusively presumed to be correct save
for manifest error.
SECTION 4.11 Indemnity. The Borrower hereby indemnifies each of the Lenders
against any loss or expense (including, without limitation, any foreign exchange
costs) which may arise or be attributable to each Lender's obtaining,
liquidating or employing deposits or other funds acquired to effect, fund or
maintain any Loan (a) as a consequence of any failure by the Borrower to make
any payment when due of any amount due hereunder in connection with a LIBOR Rate
Loan or an Alternative Currency Loan, (b) due to any failure of the Borrower to
borrow, continue or convert on a date specified therefor in a Notice of
Borrowing or Notice of Conversion/Continuation or (c) due to any payment,
prepayment or conversion of any LIBOR Rate Loan or any Alternative Currency Loan
on a date other than the last day of the Interest Period therefor. The amount of
such loss or expense shall be determined, in the applicable Lender's reasonable
discretion, based upon the assumption that such Lender funded its Commitment
Percentage of the LIBOR Rate Loans in the London interbank market and using any
reasonable attribution or averaging methods which such Lender deems appropriate
and practical. A certificate of such Lender setting forth the basis for
determining such amount or amounts necessary to compensate such Lender shall be
forwarded to the Borrower through the Administrative Agent and shall be
conclusively presumed to be correct save for manifest error.
SECTION 4.12 Capital Requirements. If either (a) the introduction of, or
any change in, or in the interpretation of, any Applicable Law or (b) compliance
with any guideline or request from any central bank or comparable agency or
other Governmental Authority (whether or not having the force of law), has or
would have the effect of reducing the rate of return on the capital of, or has
affected or would affect the amount of capital required to be maintained by, any
Lender or any corporation controlling such Lender as a consequence of, or with
reference to the Commitments and other commitments of this type, below the rate
which such Lender or such other corporation could have achieved but for such
introduction, change or compliance, then within five (5) Business Days after
written demand by any such Lender, the Borrower shall pay to such Lender from
time to time as specified by such Lender additional amounts sufficient to
compensate such Lender or other corporation for such reduction. A certificate as
to such amounts submitted to the Borrower and the Administrative Agent by such
Lender, shall, in the absence of manifest error, be presumed to be correct and
binding for all purposes.
SECTION 4.13 Taxes.
(a) Payments Free and Clear. Except as otherwise provided in Section
4.13(e), any and all payments by the Borrower hereunder or under the Notes or
the Letters of Credit shall be made free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions, charges or
withholding, and all liabilities with respect thereto excluding, (i) in the case
of each Lender and the Administrative Agent, income and franchise taxes imposed
by the jurisdiction under the laws of which such Lender or the Administrative
Agent (as the case may be) is organized or is or should be qualified to do
business or any political subdivision thereof and (ii) in the case of each
Lender, income and franchise taxes imposed by the jurisdiction of such Lender's
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct or withhold any Taxes from or in respect of any sum payable hereunder or
under any Note or in respect of any Letter of Credit to any Lender or the
Administrative Agent, (A) except as otherwise provided in Section 4.13(e), the
sum payable shall be increased as may be necessary so that after making all
required deductions or withholdings (including deductions or withholdings
applicable to additional sums payable under this Section 4.13) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
amount such party would have received had no such deductions or withholdings
been made, (B) the Borrower shall make such deductions or withholdings, (C) the
Borrower shall pay the full amount deducted to the relevant taxing authority or
other authority in accordance with Applicable Law, and (D) the Borrower shall
deliver to the Administrative Agent and such Lender evidence of such payment to
the relevant taxing authority or other Governmental Authority in the manner
provided in Section 4.13(d).
(b) Stamp and Other Taxes. In addition, the Borrower shall pay any present
or future stamp, registration, recordation or documentary taxes or any other
similar fees or charges or excise or property taxes, levies of the United States
or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the Letters of Credit, the other Loan Documents, or the perfection of any
rights or security interest in respect thereof (hereinafter referred to as
"Other Taxes").
(c) Indemnity. Except as otherwise provided in Section 4.13(e), the
Borrower shall indemnify each Lender and the Administrative Agent for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes and
Other Taxes imposed by any jurisdiction on amounts payable under this Section
4.13) 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, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Such indemnification shall be made within thirty (30) days
from the date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor. Within sixty (60) days of the written request of the
Borrower, the Administrative Agent and each Lender shall execute and deliver
such certificates, forms or other documents which can be reasonably furnished
thereby consistent with the facts and which are reasonably necessary to assist
the Borrower in applying for refunds of such Taxes or Other Taxes.
(d) Evidence of Payment. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 13.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
(e) Delivery of Tax Forms. To the extent required by Applicable Law to
reduce or eliminate withholding or payment of taxes, each Lender and the
Administrative Agent shall deliver to the Borrower, with a copy to the
Administrative Agent, on the Closing Date or concurrently with the delivery of
the relevant Assignment and Acceptance, as applicable, (i) two United States
Internal Revenue Service Forms W-9, Forms W-8ECI or Forms W-8BEN, as applicable
(or successor forms) properly completed and certifying in each case that such
Lender is entitled to a complete exemption from withholding or deduction for or
on account of any United States federal income taxes, and (ii) an Internal
Revenue Service Form W-8BEN or W-8ECI or successor applicable form, as the case
may be, to establish an exemption from United States backup withholding taxes.
Each such Lender further agrees to deliver to the Borrower with a copy to the
Administrative Agent, as applicable, two Form W-9, Form W-8BEN or W-8ECI, or
successor applicable forms or manner of certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Borrower certifying in the case of a Form W-9, Form
W-8BEN or W-8ECI (or successor forms) that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes (unless in any such case an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders such
forms inapplicable or the exemption to which such forms relate unavailable and
such Lender notifies the Borrower and the Administrative Agent that it is not
entitled to receive payments without deduction or withholding of United States
federal income taxes) and, in the case of a Form W-9, Form W-8BEN or W-8ECI,
establishing an exemption from United States backup withholding tax.
Notwithstanding anything in any Loan Document to the contrary, the Borrower
shall not be required to pay additional amounts to any Lender or the
Administrative Agent under Section 4.13 or Section 4.10(c), (i) if such Lender
or the Administrative Agent fails to comply with the requirements of this
Section 4.13(e), other than to the extent that such failure is due to a change
in law occurring after the date on which such Lender or the Administrative Agent
became a party to this Agreement or (ii) that are the result of such Lender's or
the Administrative Agent's gross negligence or willful misconduct, as
applicable.
(f) Survival. Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in this Section 4.13 shall survive the payment in full of the Obligations and
the termination of the Commitments.
SECTION 4.14. Other Consequential Changes. Subject to Section 1.3 hereof,
without prejudice and in addition to any method of conversion or rounding
prescribed by any EMU Legislation and without prejudice to the respective
obligations of the Borrower to the Administrative Agent and the Lenders and the
Administrative Agent and the Lenders to the Borrower under or pursuant to this
Agreement, except as expressly provided in this Agreement, each provision of
this Agreement, including, without limitation, the right to combine currencies
to effect a set-off, shall be subject to such reasonable changes of
interpretation as the Administrative Agent may from time to time specify to be
necessary or appropriate to reflect the introduction of or change over to the
euro in Participating Member States.
SECTION 4.15. Replacement of Lenders.
(a) If any Lender requests compensation pursuant to Section 4.10 or Section
4.12, or if the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section
4.13, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Extensions of Credit hereunder or to
assign its rights and obligations hereunder to another of its offices, branches
or affiliates, if, in the judgment of such Lender, such designation or
assignment (A) would eliminate or reduce amounts payable pursuant to Section
4.10, Section 4.12 or Section 4.13, as the case may be, in the future and (B)
would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender.
(b) If any Lender requests compensation pursuant to Section 4.10 or Section
4.12, or if the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section
4.13, then the Borrower may, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 13.10), all
of its interests, rights and obligations under this Agreement to an Eligible
Assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (A) the Borrower
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (B) such Lender shall have received
payment of an amount equal to the outstanding principal of its Extensions of
Credit, accrued interest thereon, accrued fees, breakage costs and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts) and (C) in the case of any such assignment resulting
from a claim for compensation pursuant to Section 4.10 or Section 4.12, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.
(c) To the extent that any Lender (a "Replaced Lender") is required to
assign all of its interests, rights and obligations under this Agreement to an
Eligible Assignee (a "Replacement Lender") pursuant to this Section 4.15, upon
the execution of all applicable assignment documents and the satisfaction of all
other conditions set forth herein, the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall cease to be a Lender hereunder, except
with respect to the indemnification provisions under this Agreement, which
provisions shall survive as to such Replaced Lender.
SECTION 4.16. Security. The Obligations shall be secured as provided in the
Security Documents.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1 Closing. The closing shall take place at the offices of Womble
Carlyle Sandridge & Rice, PLLC at 10:00 a.m. on December ____, 2005, or on such
other date and time as the parties hereto shall mutually agree.
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit. The
obligation of the Lenders to close this Agreement and to make the initial Loan
or issue or participate in the initial Letter of Credit, if any, is subject to
the satisfaction of each of the following conditions:
(a) Executed Loan Documents. The following Loan Documents in form and
substance satisfactory to the Administrative Agent and each Lender:
(i) this Agreement,
(ii) the Revolving Credit Notes,
(iii) the Alternative Currency Note,
(iv) the Swingline Note,
(v) the Subsidiary Guaranty Agreement;
(vi) the Collateral Agreement; and
(vii) each other applicable Loan Document;
shall have been duly authorized, executed and delivered to the Administrative
Agent by the parties thereto, shall be in full force and effect and no Default
or Event of Default shall exist thereunder, and the Borrower shall have
delivered original counterparts thereof to the Administrative Agent.
(b) Closing Certificates; etc.
(i) Officer's Certificate of the Borrower. The Administrative Agent
shall have received a certificate from a Responsible Officer of the Borrower, in
form and substance satisfactory to the Administrative Agent, to the effect that
all representations and warranties of the Borrower and its Subsidiaries
contained in this Agreement and the other Loan Documents are true, correct and
complete; that the Borrower and its Subsidiaries are not in violation of any of
the covenants contained in this Agreement and the other Loan Documents; that,
after giving effect to the transactions contemplated by this Agreement, no
Default or Event of Default has occurred and is continuing; and that the
Borrower and its Subsidiaries have satisfied each of the closing conditions.
(ii) Certificate of Secretary of the Borrower and each Subsidiary
Guarantor. The Administrative Agent shall have received a certificate of the
secretary or assistant secretary of the Borrower and each Subsidiary Guarantor
certifying as to the incumbency and genuineness of the signature of each officer
of the Borrower or such Subsidiary Guarantor executing Loan Documents to which
it is a party and certifying that attached thereto is a true, correct and
complete copy of (A) the articles of incorporation of the Borrower or such
Subsidiary Guarantor and all amendments thereto, certified by the appropriate
Governmental Authority in its jurisdiction of incorporation, (B) the bylaws of
the Borrower or such Subsidiary Guarantor as in effect on the date of such
certifications, (C) resolutions duly adopted by the Board of Directors of the
Borrower and such Subsidiary Guarantor authorizing the borrowings contemplated
hereunder and the execution, delivery and performance of this Agreement and the
other Loan Documents to which it is a party, and (D) each certificate required
to be delivered pursuant to Section 5.2(b)(iii).
(iii) Certificates of Good Standing. The Administrative Agent shall
have received (A) certificates as of a recent date of the good standing of the
Borrower and each Subsidiary Guarantor under the laws of its jurisdiction of
organization and, to the extent requested by the Administrative Agent, each
other jurisdiction where the Borrower and each Subsidiary Guarantor is qualified
to do business and (B) a certificate of the relevant taxing authority of the
jurisdiction of organization of the Borrower and each Subsidiary Guarantor
certifying that such Person has filed required tax returns and owes no
delinquent taxes.
(iv) Opinions of Counsel. The Administrative Agent shall have received
favorable opinions of counsel to the Borrower and each Subsidiary Guarantor
addressed to the Administrative Agent and the Lenders with respect to the
Borrower, the Subsidiary Guarantors, the Loan Documents and such other matters
as the Lenders shall request.
(v) Tax Forms. The Administrative Agent shall have received copies of
the United States Internal Revenue Service forms required by Section 4.13(e)
hereof.
(c) Security Interests.
(i) Pledged Collateral. To the extent that the Applicable Laws and
practices of any relevant foreign jurisdiction provide for the issuance of stock
certificates or other certificates, the Administrative Agent shall have received
original stock certificates or other certificates (or the equivalent taking into
account the Applicable Laws and practices of any relevant foreign jurisdiction)
of each Material Foreign Subsidiary evidencing the capital stock or other
ownership interests pledged pursuant to the Collateral Agreement, together with
an undated stock power for each such certificate duly executed in blank by the
registered owner thereof; provided that the Borrower may evidence compliance
herewith by providing a perfected first priority security interest (or the
equivalent thereof pursuant to the Applicable Laws and practices of any relevant
foreign jurisdiction) in the relevant indicia of ownership of such Material
Foreign Subsidiary; provided, further, that the Borrower or the applicable
Domestic Subsidiary of the Borrower owning the capital stock or other ownership
interests of such Material Foreign Subsidiary shall not be required to pledge
more than that percentage of all issued and outstanding shares of all capital
stock or other ownership interests of such Foreign Subsidiary the granting of a
security interest in which shall not result in material adverse tax consequences
to the Borrower or such applicable Domestic Subsidiary (it being acknowledged by
the Borrower, the Lenders and the Administrative Agent that, as of the Closing
Date, such percentage required to be pledged is sixty-five percent (65%)).
(ii) Foreign Security Interests and Filings. Notwithstanding anything
in the Loan Documents to the contrary, (A) the Borrower shall not be required to
deliver a foreign pledge agreement unless reasonably requested to do so by the
Administrative Agent and (B) the Borrower shall not be required to deliver an
opinion of counsel as to the perfection, validity and binding nature of the
security interests created pursuant to such foreign pledge agreement unless
reasonably requested to do so by the Administrative Agent.
(d) Consents; Defaults.
(ii) Governmental and Third Party Approvals. The Borrower shall have
obtained all necessary material approvals, authorizations and consents of any
Person and of all Governmental Authorities and courts having jurisdiction with
respect to the transactions contemplated by this Agreement and the other Loan
Documents.
(i) No Injunction, Etc. No action, suit, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or arises out of, this
Agreement or the other Loan Documents or the consummation by the Borrower or any
of its Subsidiaries of the transactions contemplated hereby or thereby, or which
would be reasonably likely to have a Material Adverse Effect.
(ii) No Event of Default. No Default or Event of Default shall have
occurred and be continuing.
(e) Financial Matters.
(i) Financial Statements. The Administrative Agent shall have received
the audited Consolidated financial statements of the Borrower and its
Subsidiaries for each of the Borrower's Fiscal Years ending in 2004, 2003 and
2002, each as filed with the Securities and Exchange Commission and prepared in
accordance with GAAP.
(ii) Financial Condition Certificate. The Borrower shall have
delivered to the Administrative Agent a certificate, in form and substance
satisfactory to the Administrative Agent, and certified as accurate by a
Responsible Officer, that (A) the Borrower and each of its Subsidiaries are each
Solvent as of the Closing Date, (B) attached thereto are calculations evidencing
compliance with the covenants contained in Article IX hereof as of the most
recent quarterly financial statements of the Borrower and its Subsidiaries, and
(C) the financial projections previously delivered to the Administrative Agent
represent the good faith estimates (utilizing reasonable assumptions) of the
financial condition and operations of the Borrower and its Subsidiaries as of
the date thereof.
(iii) Payment at Closing; Fee Letters. The Borrower shall have paid to
the Administrative Agent and the Lenders the fees set forth or referenced in
Section 4.3 and any other accrued and unpaid fees or commissions due hereunder
(including, without limitation, reasonable legal fees and expenses) and to any
other Person such amount as may be due thereto in connection with the
transactions contemplated hereby, including all taxes, fees and other charges in
connection with the execution, delivery, recording, filing and registration of
any of the Loan Documents.
(f) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have received
(A) a Notice of Borrowing, as applicable, from the Borrower in accordance with
Section 2.4(a) and (B) a Notice of Account Designation from the Borrower in
accordance with Section 2.4(b) specifying the account or accounts to which the
proceeds of any Loans made after the Closing Date are to be disbursed.
(ii) Existing Facility. The Existing Facility shall be repaid in full
and terminated.
(iii) Miscellaneous Matters. The Administrative Agent shall have
received such information as it may have requested from the Borrower and its
Subsidiaries relating to litigation, tax, accounting, labor, insurance, pension
liabilities (actual or contingent), leases of real property, agreements
evidencing Debt, ownership of assets by the Borrower or any of its Subsidiaries,
environmental matters, contingent liabilities and management of the Borrower and
its Subsidiaries (including, as applicable, copies of all documents, instruments
and agreements relating to such subjects), and such information shall be in form
and substance satisfactory to Administrative Agent.
(iv) Other Documents. All opinions, certificates and other instruments
and all proceedings in connection with the transactions contemplated by this
Agreement shall be satisfactory in form and substance to the Administrative
Agent. The Administrative Agent shall have received copies of all other
documents, certificates and instruments reasonably requested thereby with
respect to the transactions contemplated by this Agreement.
SECTION 5.3 Conditions to All Extensions of Credit. The obligations of the
Lenders to make any Extensions of Credit (including the initial Extension of
Credit), convert or continue any Loan and/or the Issuing Lender to issue or
extend any Letter of Credit are subject to the satisfaction of the following
conditions precedent on the relevant borrowing, conversion, continuation,
issuance or extension date:
(a) Continuation of Representations and Warranties. The representations and
warranties contained in Section 6.1(a), (c), (d), (e), (j), (m) and (n) shall be
true and correct on and as of such borrowing, conversion, continuation, issuance
or extension date with the same effect as if made on and as of such date, except
for any representation and warranty made as of an earlier date, which
representation and warranty shall remain true and correct as of such earlier
date.
(b) No Existing Default. No Default or Event of Default shall have occurred
and be continuing (i) on the borrowing, conversion or continuation date with
respect to such Loan or after giving effect to the Loans to be made, converted
or continued on such date or (ii) on the issue date with respect to such Letter
of Credit or after giving effect to the issuance or extension of such Letter of
Credit on such date.
(c) Notices. The Administrative Agent shall have received a Notice of
Borrowing or Notice of Conversion/Continuation, as applicable, from the Borrower
in accordance with Section 2.4(a) or 4.2.
(d) Compliance with Borrowing Limits. The Borrower shall have demonstrated
compliance with Section 2.5(b) (i) on the borrowing, conversion or continuation
date with respect to such Loan or after giving effect to the Loans to be made,
converted or continued on such date or (ii) on the issuance or extension date
with respect to such Letter of Credit or after giving effect to the issuance or
extension of such Letter of Credit on such date.
(e) Additional Documents. The Administrative Agent shall have received each
additional document, instrument, legal opinion or other item reasonably
requested by it.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 6.1 Representations and Warranties. To induce the Administrative
Agent and the Lenders to enter into this Agreement and to induce the Lenders to
make Extensions of Credit, the Borrower hereby represents and warrants to the
Administrative Agent and Lenders both before and after giving effect to the
transactions contemplated hereunder that:
(a) Organization; Power; Qualification. Each of the Borrower and its
Subsidiaries (i) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or formation, (ii) has the
power and authority to own its properties and to carry on its business and (iii)
is duly qualified and authorized to do business in each jurisdiction in which
its business requires such qualification and authorization, except where the
failure to be so qualified could not reasonably be expected to have a Material
Adverse Effect. The jurisdictions in which the Borrower and its Subsidiaries are
organized and qualified to do business as of the Closing Date are described on
Schedule 6.1(a).
(b) Ownership. Each Subsidiary of the Borrower as of the Closing Date is
listed, and the Material Domestic Subsidiaries and Material Foreign Subsidiaries
are identified as such, on Schedule 6.1(b). As of the Closing Date, the
capitalization of the Borrower and its Subsidiaries consists of the number of
shares, authorized, issued and outstanding, of such classes and series, with or
without par value, described on Schedule 6.1(b). All outstanding shares or
equity interests have been duly authorized and validly issued and are fully paid
and nonassessable, with no personal liability attaching to the ownership
thereof, and not subject to any preemptive or similar rights. The shareholders
of the Subsidiaries of the Borrower and the number of shares owned by each as of
the Closing Date are described on Schedule 6.1(b). As of the Closing Date, there
are no outstanding stock purchase warrants, subscriptions, options, securities,
instruments or other rights of any type or nature whatsoever, which are
convertible into, exchangeable for or otherwise provide for or permit the
issuance of capital stock of the Borrower or its Subsidiaries, except pursuant
to plans and agreements described in the Borrower's periodic filings with the
SEC.
(c) Authorization of Agreement, Loan Documents and Borrowing. Each of the
Borrower and its Subsidiaries has the right, power and authority and has taken
all necessary corporate and other organizational action to authorize the
execution, delivery and performance of this Agreement and each of the other Loan
Documents to which it is a party in accordance with their respective terms. This
Agreement and each of the other Loan Documents have been duly executed and
delivered by the duly authorized officers of the Borrower and each of its
Subsidiaries party thereto, and each such document constitutes the legal, valid
and binding obligation of the Borrower or its Subsidiary party thereto,
enforceable in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar state
or federal debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of equitable
remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc.
The execution, delivery and performance by the Borrower and its Subsidiaries of
the Loan Documents to which each such Person is a party, in accordance with
their respective terms, the Extensions of Credit hereunder and the transactions
contemplated hereby do not and will not, by the passage of time, the giving of
notice or otherwise, (i) require any material Governmental Approval or violate
any material Applicable Law relating to the Borrower or any of its Subsidiaries,
(ii) conflict with, result in a breach of or constitute a default under the
articles of incorporation, bylaws or other organizational documents of the
Borrower or any of its Subsidiaries or any material indenture, agreement or
other instrument to which such Person is a party or by which any of its
properties may be bound or any Governmental Approval relating to such Person,
(iii) result in or require the creation or imposition of any material Lien upon
or with respect to any property now owned or hereafter acquired by such Person
other than Liens arising under the Loan Documents or (iv) require any material
consent or material authorization of, material filing with, or other material
act in respect of, an arbitrator or Governmental Authority and no material
consent of any other Person is required in connection with the execution,
delivery, performance, validity or enforceability of this Agreement.
(e) Compliance with Law; Governmental Approvals. Each of the Borrower and
its Subsidiaries (i) has all Governmental Approvals required by any Applicable
Law for it to conduct its business, each of which is in full force and effect,
is final and not subject to review on appeal and is not the subject of any
pending or, to Borrower's knowledge, threatened attack by direct or collateral
proceeding, (ii) is in compliance in all material respects with each
Governmental Approval applicable to it, (iii) is in compliance, and has been in
compliance, with all Applicable Laws relating to it or any of its respective
properties and (iv) has timely filed all material reports, documents and other
materials required to be filed by it under all Applicable Laws with any
Governmental Authority and has retained all material records and documents
required to be retained by it under Applicable Law, except where the failure to
comply with or satisfy could not reasonably be expected to have a Material
Adverse Effect.
(f) Taxes. No Governmental Authority has asserted any Lien or other claim
against the Borrower or any Subsidiary thereof with respect to unpaid taxes
which has not been discharged or resolved, except unpaid taxes which are being
contested in good faith and for which adequate reserves have been provided in
accordance with GAAP.
(g) Intellectual Property Matters. Each of the Borrower and its
Subsidiaries owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, service marks, service mark rights,
trade names, trade name rights, copyrights and rights with respect to the
foregoing which are required to conduct its business, except for those, the
failure of which to own or possess, could not reasonably be expected to have a
Material Adverse Effect. To its knowledge, (i) no event has occurred which
permits, or after notice or lapse of time or both would permit, the revocation
or termination of any such rights and (ii) neither the Borrower nor any
Subsidiary thereof is liable to any Person for infringement under Applicable Law
with respect to any such rights as a result of its business operations, in each
case which could reasonably be expected to have a Material Adverse Effect.
(h) Environmental Matters.
(i) To the Borrower's knowledge, there is no contamination at, under
or about the Borrower's or any of its Subsidiaries' properties or such
operations which could interfere with the continued operation of such properties
or impair the fair saleable value thereof, except to the extent any such
non-compliance or contamination could not reasonably be expected to have a
Material Adverse Effect;
(ii) Neither the Borrower nor any Subsidiary thereof has received any
notice of violation, alleged violation, non-compliance, liability or potential
liability regarding Environmental Laws, except as could not reasonably be
expected to have a Material Adverse Effect; and
(iii) To the Borrower's knowledge, Hazardous Materials have not been
transported or disposed of by the Borrower or any of its Subsidiaries or by any
other Person to or from the properties owned, leased or operated by the Borrower
and its Subsidiaries in a manner or to a location which could give rise to
liability under Environmental Laws that could reasonably be expected to have a
Material Adverse Effect.
(i) ERISA.
(i) As of the Closing Date, neither the Borrower nor any ERISA
Affiliate maintains or contributes to, or has any obligation under, any Employee
Benefit Plans other than those identified on Schedule 6.1(i);
(ii) Each Employee Benefit Plan that is intended to be qualified under
Section 401(a) of the Code has been determined by the Internal Revenue Service
to be so qualified, and each trust related to such plan has been determined to
be exempt under Section 501(a) of the Code except for such plans that have not
yet received determination letters but for which the remedial amendment period
for submitting a determination letter has not yet expired;
(iii) As of the Closing Date, no Pension Plan has been terminated, nor
has any accumulated funding deficiency (as defined in Section 412 of the Code)
been incurred (without regard to any waiver granted under Section 412 of the
Code), nor has any funding waiver from the Internal Revenue Service been
received or requested with respect to any Pension Plan, nor has there been any
event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA
with respect to any Pension Plan; and
(iv) No Termination Event has occurred or is reasonably expected to
occur.
(j) Margin Stock. Neither the Borrower nor any Subsidiary thereof is
engaged principally or as one of its activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" (as each
such term is defined or used, directly or indirectly, in Regulation U of the
Board of Governors of the Federal Reserve System). No part of the proceeds of
any of the Loans or Letters of Credit will be used for purchasing or carrying
margin stock or for any purpose which violates, or which would be inconsistent
with, the provisions of Regulation T, U or X of such Board of Governors.
(k) Government Regulation. Neither the Borrower nor any Subsidiary thereof
is an "investment company" or a company "controlled" by an "investment company"
(as each such term is defined or used in the Investment Company Act of 1940, as
amended) and neither the Borrower nor any Subsidiary thereof is, or after giving
effect to any Extension of Credit will be, subject to regulation under the
Public Utility Holding Company Act of 1935 or the Interstate Commerce Act, each
as amended, or any other Applicable Law which limits its ability to incur or
consummate the transactions contemplated hereby.
(l) Employee Relations. Each of the Borrower and its Subsidiaries is not,
as of the Closing Date, party to any collective bargaining agreement nor has any
labor union been recognized as the representative of its employees except as set
forth on Schedule 6.1(l). The Borrower knows of no pending, threatened or
contemplated strikes, work stoppage or other collective labor disputes involving
its employees or those of its Subsidiaries that could reasonably be expected to
have a Material Adverse Effect.
(m) Financial Statements. The (i) audited Consolidated balance sheet of the
Borrower and its Subsidiaries as of December 31, 2004 and the related audited
statements of income and retained earnings and cash flows for the Fiscal Year
then ended and (ii) unaudited Consolidated balance sheet of the Borrower and its
Subsidiaries as of September 30, 2005 and related unaudited interim statements
of income and retained earnings, in each case including the accompanying notes,
copies of which have been furnished to the Administrative Agent and each Lender,
are complete and correct and fairly present on a Consolidated basis the
financial position, results of operations and cash flows of the Borrower and its
Subsidiaries as of such dates and for the periods then ended (other than
customary, year end adjustments for unaudited financial statements). All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP. The Borrower and its Subsidiaries have no
Debt, obligation or other unusual forward or long-term commitment which is not
fairly reflected in the foregoing financial statements or in the notes thereto.
(n) No Material Adverse Change. Except as publicly disclosed by the
Borrower prior to the Closing Date, since September 30, 2005, there has been no
material adverse change in the properties, assets, liabilities (actual or
contingent), business, operations, prospects, or condition (financial or
otherwise) of the Borrower and its Subsidiaries, taken as a whole, and no event
has occurred or condition arisen that could reasonably be expected to have a
Material Adverse Effect.
(o) Solvency. As of the Closing Date and after giving effect to each
Extension of Credit made hereunder, the Borrower and each of its Subsidiaries
will be Solvent.
(p) Liens. None of the properties and assets of the Borrower or any
Subsidiary thereof is subject to any Lien, except Liens permitted pursuant to
Section 10.2. No financing statement under the Uniform Commercial Code of any
state which names the Borrower or any Subsidiary thereof or any of their
respective trade names or divisions as debtor and which has not been terminated,
has been filed in any state or other jurisdiction and neither the Borrower nor
any Subsidiary thereof has signed any such financing statement or any security
agreement authorizing any secured party thereunder to file any such financing
statement, except to perfect those Liens permitted by Section 10.2 hereof.
(q) Debt and Guaranty Obligations. Schedule 6.1(q) is a complete and
correct listing of all Debt and Guaranty Obligations of the Borrower and its
Subsidiaries as of the Closing Date in excess of $3,000,000.
(r) Litigation. Except for matters existing on the Closing Date and set
forth on Schedule 6.1(r), there are no actions, suits or proceedings pending
nor, to the knowledge of the Borrower, threatened against the Borrower or any
Subsidiary thereof or any of their respective properties in any court or before
any arbitrator of any kind or before or by any Governmental Authority that, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect.
(s) Absence of Defaults. No event has occurred or is continuing which
constitutes a Default or an Event of Default, or which constitutes, or which
with the passage of time or giving of notice or both would constitute, a default
or event of default by the Borrower or any Subsidiary thereof under any
judgment, decree or order to which the Borrower or its Subsidiaries is a party
or by which the Borrower or its Subsidiaries or any of their respective
properties may be bound or which would require the Borrower or its Subsidiaries
to make any payment thereunder prior to the scheduled maturity date therefor,
except where such default or defaults, if any, could not reasonably be expected
to have a Material Adverse Effect.
(t) Accuracy and Completeness of Information. All written information
produced by or on behalf of the Borrower or any Subsidiary thereof and furnished
to the Lenders was, at the time the same was so furnished, complete and correct
in all material respects to the extent necessary to give the recipient a true
and accurate knowledge of the subject matter, as it pertains to the financing
contemplated by this Agreement. No document furnished or written statement made
to the Administrative Agent or the Lenders by the Borrower or any Subsidiary
thereof in connection with the negotiation, preparation or execution of this
Agreement or any of the Loan Documents contains any untrue statement of a fact
material to the creditworthiness of the Borrower or its Subsidiaries or omits to
state a material fact necessary in order to make the statements contained
therein not misleading in any material respect. The Borrower is not aware of any
facts which it has not disclosed in writing to the Administrative Agent having a
Material Adverse Effect.
SECTION 6.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including but not limited to any such representation or warranty made
in or in connection with any amendment thereto) shall constitute representations
and warranties made under this Agreement. All representations and warranties
made under this Agreement shall be made or deemed to be made at and as of the
Closing Date (except those that are expressly made as of a specific date), shall
survive the Closing Date and shall not be waived by the execution and delivery
of this Agreement, any investigation made by or on behalf of the Lenders or any
borrowing hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set forth
in Section 13.11, the Borrower will furnish or cause to be furnished to the
Administrative Agent at the Administrative Agent's Office and to the Lenders at
their respective addresses as set forth on Schedule 1.1(a), or such other office
as may be designated by the Administrative Agent and Lenders from time to time:
SECTION 7.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any event
within fifty (50) days after each fiscal quarter of each Fiscal Year, unaudited
Consolidated financial statements of the Borrower and its Subsidiaries for the
fiscal quarter then ended and that portion of the Fiscal Year then ended,
including the notes thereto, all in reasonable detail and prepared by the
Borrower in accordance with GAAP and in compliance with the applicable reporting
requirements of the Securities and Exchange Commission for issuers of publicly
traded securities, and certified by the chief financial officer or the
controller of the Borrower to present fairly in all material respects the
financial condition of the Borrower and its Subsidiaries on a Consolidated basis
as of their respective dates and the results of operations of the Borrower and
its Subsidiaries for the respective periods then ended, subject to normal year
end adjustments (it being agreed that the requirements of this subsection may be
satisfied by filing of the applicable quarterly report on Form 10-Q of the
Borrower with the Securities and Exchange Commission to the extent that: (i) it
contains the foregoing information, (ii) it is available to the Administrative
Agent and the Lenders on EDGAR and (iii) the Borrower notifies the
Administrative Agent and the Lenders within the time period noted herein that it
is available to them on EDGAR).
(b) Annual Financial Statements. As soon as practicable and in any event
within one hundred and five (105) days after the end of each Fiscal Year,
audited Consolidated financial statements of the Borrower and its Subsidiaries
for the Fiscal Year then ended, including the notes thereto, all in reasonable
detail and certified by an independent public accounting firm in accordance with
GAAP, and accompanied by a report thereon by such independent public accounting
firm that is not qualified with respect to scope limitations imposed by the
Borrower or any of its Subsidiaries or with respect to accounting principles
followed by the Borrower or any of its Subsidiaries not in accordance with GAAP
(it being agreed that the requirements of this subsection may be satisfied by
filing of the applicable annual report on Form 10-K of the Borrower with the
Securities and Exchange Commission to the extent that: (i) it contains the
foregoing information, (ii) it is available to the Administrative Agent and the
Lenders on EDGAR and (iii) the Borrower notifies the Administrative Agent and
the Lenders within the time period noted herein that it is available to them on
EDGAR).
SECTION 7.2 Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 7.1(a) or (b) and at such other
times as the Administrative Agent shall reasonably request, a certificate of the
chief financial officer, the controller or the treasurer of the Borrower in the
form of Exhibit F attached hereto (an "Officer's Compliance Certificate").
SECTION 7.3 Other Reports. Such other information regarding the operations,
business affairs and financial condition of the Borrower or any of its
Subsidiaries as the Administrative Agent or any Lender may reasonably request.
SECTION 7.4 Notices. Prompt (but in no event later than ten (10) days after
an officer of the Borrower obtains knowledge thereof) telephonic and written
notice of:
(a) any attachment, judgment, lien, levy or order exceeding $3,000,000 that
may be assessed against the Borrower or any Subsidiary thereof;
(b) (i) any Default or Event of Default or (ii) the occurrence or existence
of any event or circumstance that could reasonably be expected to become a
Default or Event of Default; and
(c) any event which makes any of the representations set forth in Section
6.1 inaccurate in any respect (provided that, with respect to any representation
set forth in Section 6.1 that is not subject to a materiality or a Material
Adverse Effect qualification, any event which makes such representation
inaccurate in any material respect).
SECTION 7.5 Accuracy of Information. All written information furnished by
or on behalf of the Borrower to the Administrative Agent or any Lender whether
pursuant to this Article VII or any other provision of this Agreement, or any of
the Loan Documents, shall, at the time the same is so furnished, comply with the
representations and warranties set forth in Section 6.1(w).
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner provided
for in Section 13.11, the Borrower will, and will cause each of its Subsidiaries
to:
SECTION 8.1 Preservation of Corporate Existence and Related Matters. Except
as permitted by Section 10.4, preserve and maintain its separate corporate
existence and all rights, franchises, licenses and privileges necessary to the
material conduct of its business, and qualify and remain qualified as a foreign
corporation and authorized to do business in each jurisdiction in which the
failure to so qualify could reasonably be expected to have a Material Adverse
Effect.
SECTION 8.2 Maintenance of Property. Protect and preserve all properties
useful in and material to its business, including copyrights, patents, trade
names, service marks and trademarks; maintain in good working order and
condition all buildings, equipment and other tangible real and personal
property; and from time to time make or cause to be made all renewals,
replacements and additions to such property necessary for the conduct of its
business, so that the business carried on in connection therewith may be
conducted in a commercially reasonable manner.
SECTION 8.3 Insurance. Maintain insurance with financially sound and
reputable insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses (including, without limitation,
hazard and business interruption coverage) and as may be required by Applicable
Law, and from time to time after the Closing Date deliver to the Administrative
Agent upon its request a detailed list of the insurance then in effect, stating
the names of the insurance companies, retention amounts, the amounts of the
insurance, the dates of the expiration thereof and the properties and risks
covered thereby.
SECTION 8.4 Accounting Methods and Financial Records. Maintain a system of
accounting, and keep such books, records and accounts (which shall be true and
complete in all material respects) as may be required or as may be necessary to
permit the preparation of financial statements in accordance with GAAP and in
compliance with the regulations of any Governmental Authority having
jurisdiction over it or any of its properties.
SECTION 8.5 Payment and Performance of Obligations. Pay and perform all
Obligations under this Agreement and the other Loan Documents, and pay or
perform (a) all taxes, assessments and other governmental charges that may be
levied or assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with customary trade
practices; provided, that the Borrower or such Subsidiary may contest any item
described in clauses (a) or (b) of this Section 8.5 in good faith so long as
adequate reserves are maintained with respect thereto in accordance with GAAP.
SECTION 8.6 Compliance With Laws and Approvals. Observe and remain in
compliance in all material respects with all Applicable Laws and maintain in
full force and effect all Governmental Approvals, in each case applicable to its
properties and the conduct of its business.
SECTION 8.7 ERISA. The Borrower shall furnish to the Administrative Agent
upon the Administrative Agent's request such additional information about any
Employee Benefit Plan as may be reasonably requested by the Administrative
Agent.
SECTION 8.8 Compliance With Material Agreements. Comply in all material
respects with each term, condition and provision of all material agreements and
other instruments entered into in the conduct of its business; provided, that
the Borrower or any such Subsidiary may contest any such material agreement or
other instrument in good faith through applicable proceedings so long as
adequate reserves are maintained in accordance with GAAP.
SECTION 8.9 Visits and Inspections. Permit representatives of the
Administrative Agent or any Lender, from time to time upon reasonable notice, to
visit and inspect its properties; inspect, audit and make extracts from its
books, records and files, including, but not limited to, management letters
prepared by independent accountants; and discuss with its principal officers,
and its independent accountants, its business, assets, liabilities, financial
condition, results of operations and business prospects.
SECTION 8.10 Additional Subsidiaries and Additional Collateral. Notify the
Administrative Agent of (1) the creation or acquisition of any Material Domestic
Subsidiary or Material Foreign Subsidiary or (2) any Domestic Subsidiary or
Foreign Subsidiary of the Borrower becoming a Material Domestic Subsidiary or
Material Foreign Subsidiary as evidenced by the information set forth in the
Officer's Compliance Certificate delivered pursuant to Section 7.2, and promptly
thereafter (and in any event within thirty (30) days), cause to be executed and
delivered to the Administrative Agent (i) a duly executed Joinder Agreement
(pursuant to which such Material Domestic Subsidiary shall become a party to the
Guaranty Agreement, the Collateral Agreement and any other applicable Security
Documents and such Material Foreign Subsidiary shall execute the Collateral
Agreement as an issuer), (ii) such other instruments and documents and other
items of the type required to be delivered pursuant to Section 5.2(c), all in
form and substance reasonably satisfactory to the Administrative Agent, as may
be reasonably required by the Administrative Agent to obtain a first priority
perfected security interest in the capital stock of any Material Foreign
Subsidiary to be pledged pursuant to the Loan Documents, (iii) such closing
documents and closing certificates of the type required to be delivered pursuant
to Section 5.2(b), including, without limitation, favorable legal opinions
addressed to the Administrative Agent and the Lenders in form and substance
reasonably satisfactory thereto with respect to such duly executed Joinder
Agreement (and (i) the Guaranty Agreement, the Collateral Agreement and any
other applicable Security Documents to which such Material Domestic Subsidiary
shall become party thereto in connection therewith and (ii) the Collateral
Agreement that the Material Foreign Subsidiary shall execute as an issuer in
connection therewith), in each case as may reasonably be requested by the
Administrative Agent, and (iv) such other documents and certificates as may be
reasonably requested by the Administrative Agent. Notwithstanding the foregoing,
neither the Borrower nor any Material Domestic Subsidiary shall pledge to the
Administrative Agent more than that percentage of all issued and outstanding
shares of all capital stock or other ownership interests of a Material Foreign
Subsidiary the granting of a security interest in which shall result in material
adverse tax consequences to the Borrower or the applicable Material Domestic
Subsidiary (it being acknowledged by the Borrower, the Lenders and the
Administrative Agent that, as of the Closing Date, such percentage required to
be pledged is sixty-five percent (65%).
SECTION 8.11 Use of Proceeds. Use the proceeds of the Extensions of Credit
(a) to refinance the Existing Facility and (b) for working capital and general
corporate requirements of the Borrower and its Subsidiaries, including the
payment of certain fees and expenses incurred in connection with the
transactions contemplated by this Agreement.
SECTION 8. 12 Burdensome Provisions. Neither the Borrower nor any
Subsidiary thereof shall be a party to any indenture, agreement, lease or other
instrument, or subject to any corporate or partnership restriction, Governmental
Approval or Applicable Law which could be reasonably expected to have a Material
Adverse Effect. Except as set forth in the Existing Bond Documentation, no
Subsidiary shall be a party to any agreement or instrument or otherwise subject
to any restriction or encumbrance that restricts or limits its ability to make
dividend payments or other distributions in respect of its capital stock to the
Borrower or any Subsidiary or to transfer any of its assets or properties to the
Borrower or any other Subsidiary in each case other than existing under or by
reason of the Loan Documents or Applicable Law.
SECTION 8. 13 Titles to Properties. Each of the Borrower and its
Subsidiaries shall have such title to the real property owned or leased by it as
is necessary or desirable to the conduct of its business and valid and legal
title to all of its personal property and assets, except those which have been
disposed of by the Borrower or its Subsidiaries in the ordinary course of
business or as otherwise expressly permitted hereunder.
SECTION 8. 14 Senior Debt Status. The Obligations of the Borrower and each
of its Subsidiaries under this Agreement and each of the other Loan Documents
shall rank at least senior in priority of payment to all Subordinated Debt of
each such Person and shall be designated at all times as "Senior Indebtedness"
under all instruments and documents, now or in the future, relating to all
Subordinated Debt.
SECTION 8.15 Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Administrative
Agent and the Required Lenders (through the Administrative Agent) may reasonably
require to document and consummate the transactions contemplated hereby and to
vest completely in and insure the Administrative Agent and the Lenders their
respective rights under this Agreement, the Notes, the Letters of Credit and the
other Loan Documents.
ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set forth
in Section 13.11, the Borrower and its Subsidiaries on a Consolidated basis will
not:
SECTION 9.1 Leverage Ratio. As of any fiscal quarter end, permit the ratio
of (a) Total Funded Debt on such date, to (b) EBITDA for the period of four (4)
consecutive fiscal quarters ending on or immediately prior to such date, to be
greater than 2.50 to 1.00.
SECTION 9.2 Consolidated Net Worth. Permit, at any time, Consolidated Net
Worth to be less than $120,000,000.
SECTION 9.3 Interest Coverage Ratio As of any fiscal quarter end during the
periods set forth below, permit the ratio of: (a) EBIT for the period of four
(4) consecutive fiscal quarters ending on or immediately prior to such date, to
(b) Interest Expense for the period of four (4) consecutive fiscal quarters
ending on or immediately prior to such date, to be less than 2.50 to 1.00.
SECTION 9.4 Capital Expenditures. During any Fiscal Year, permit Capital
Expenditures to be greater than the sum of (i) one hundred fifty percent (150%)
of depreciation and amortization expense (calculated in accordance with GAAP)
for the prior Fiscal Year and (ii) $5,000,000.
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set forth
in Section 13.11, the Borrower has not and will not permit any of its
Subsidiaries to:
SECTION 10.1 Limitations on Debt. Create, incur, assume or suffer to exist
any Debt except:
(a) the Obligations (excluding any Hedging Obligations);
(b) Debt incurred in connection with a Hedging Agreement with a
counterparty and upon terms and conditions (including interest rate) reasonably
satisfactory to the Administrative Agent; provided, that any counterparty that
is a Lender or the Bank of Montreal shall be deemed satisfactory to the
Administrative Agent;
(c) Debt existing on the Closing Date and not otherwise permitted under
this Section 10.1, as set forth on Schedule 6.1(q), and the renewal,
refinancing, extension and replacement (but not the increase in the aggregate
principal amount) thereof;
(d) Guaranty Obligations in favor of the Administrative Agent for the
benefit of the Administrative Agent and the Lenders;
(e) unsecured Debt of the Borrower and the Domestic Subsidiaries in an
aggregate amount not to exceed $5,000,000 on any date of determination (provided
that such Debt may be secured to the extent that any such Debt is created,
incurred, assumed or suffered to exist in connection with Capital Leases and
purchase money financing);
(f) Debt of the Foreign Subsidiaries in an aggregate amount not to exceed
$10,000,000 on any date of determination;
(g) intercompany Debt between the Borrower and any Subsidiary of the
Borrower or between any Subsidiary of the Borrower and any other Subsidiary of
the Borrower; or
(h) Debt of any Person acquired in accordance with Section 10.3(c),
including any renewal, extension or refinancing, but not any increase in the
aggregate principal amount, thereof (provided that such Debt was not incurred in
connection with such acquisition);
provided, that no agreement or instrument with respect to Debt permitted to be
incurred by this Section shall restrict, limit or otherwise encumber (by
covenant or otherwise) the ability of any Subsidiary of the Borrower to make any
payment to the Borrower or any of its Subsidiaries (in the form of dividends,
intercompany advances or otherwise) for the purpose of enabling the Borrower to
pay the Obligations.
SECTION 10.2 Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties
(including, without limitation, shares of capital stock or other ownership
interests), real or personal, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or levies
(excluding any Lien imposed pursuant to any of the provisions of ERISA or the
Environmental Laws) not yet due or as to which the period of grace, if any,
related thereto has not expired or which are being contested in good faith and
by appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;
(b) the claims of materialmen, mechanics, carriers, warehousemen,
processors, landlords or other similar parties for labor, materials, supplies or
rentals incurred in the ordinary course of business, (i) which are not overdue
for a period of more than thirty (30) days or (ii) which are being contested in
good faith and by appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the ordinary course of
business in connection with, or to secure payment of, obligations under workers'
compensation, unemployment insurance or similar legislation;
(d) Liens constituting encumbrances in the nature of zoning restrictions,
easements and rights or restrictions of record on the use of real property,
which in the aggregate are not substantial in amount and which do not, in any
case, prevent the use thereof in the ordinary conduct of the Borrower's
business;
(e) Liens of the Administrative Agent for the benefit of the Administrative
Agent and the Lenders;
(f) Liens not otherwise permitted by this Section 10.2 and in existence on
the Closing Date and described on Schedule 10.2;
(g) Liens securing Debt incurred in connection with Capital Leases and
purchase money Debt (in each case to the extent that such Debt is permitted
under Section 10.1(e)); provided that (A) such Liens shall be created
substantially simultaneously with the acquisition or lease of the related asset,
(B) such Liens do not at any time encumber any property other than the property
financed by such Debt, (C) the amount of such Debt secured thereby is not
increased and (D) the principal amount of such Debt secured by any such Lien
shall at no time exceed one hundred percent (100%) of the original purchase
price or lease payment amount of such property at the time it was acquired;
(h) Liens on the assets of any Foreign Subsidiary securing Debt of such
Foreign Subsidiary (to the extent that such Debt is permitted under Section
10.1(f));
(i) Liens securing judgments not giving rise to an Event of Default so long
as (A) such Lien is adequately bonded and (B) any appropriate legal proceeding
which may have been duly initiated for the review of such judgment shall not
have been finally terminated or the period within which such proceeding may be
initiated shall not have expired;
(j) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual or warranty requirements of the Borrower or
any of its Subsidiaries, including rights of offset and set-off, incurred in the
ordinary course of business;
(k) Liens in favor of custom and revenue authorities arising as a matter of
law to secure payment of custom duties in connection with the importation of
goods in the ordinary course of business;
(l) Liens arising from the precautionary filing of Uniform Commercial Code
financing statements (or similar foreign counterparts) regarding leases; and
(m) rights of setoff or bankers' liens upon deposits of cash in favor of
banks or other financial institutions in the ordinary course of business.
SECTION 10.3 Limitations on Loans, Advances, Investments and Acquisitions.
Purchase, own, invest in or otherwise acquire, directly or indirectly, any
capital stock, interests in any partnership or joint venture (including, without
limitation, the creation or capitalization of any Subsidiary), evidence of Debt
or other obligation or security, substantially all or a portion of the business
or assets of any other Person or any other investment or interest whatsoever in
any other Person, or make or permit to exist, directly or indirectly, any loans,
advances or extensions of credit to, or any investment in cash or by delivery of
property in, any Person except:
(a) investments (i) existing on the Closing Date in Subsidiaries, (ii) in
Subsidiaries formed or acquired after the Closing Date so long as the Borrower
and its Subsidiaries comply with the provisions of Section 8.10 and (iii)
existing on the Closing Date in the form of loans, advances and investments
described on Schedule 10.3;
(b) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency thereof
maturing within three hundred sixty-five (365) days from the date of acquisition
thereof, (ii) commercial paper maturing no more than one hundred twenty (120)
days from the date of creation thereof and currently having the highest rating
obtainable from either Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. or Moody's Investors Service, Inc., (iii)
certificates of deposit maturing no more than one hundred twenty (120) days from
the date of creation thereof issued by commercial banks incorporated under the
laws of the United States of America, each having combined capital, surplus and
undivided profits of not less than $500,000,000 and having a rating of "A" or
better by a nationally recognized rating agency; provided, that the aggregate
amount invested in such certificates of deposit shall not at any time exceed
$5,000,000 for any one such certificate of deposit and $10,000,000 for any one
such bank, (iv) time deposits maturing no more than thirty (30) days from the
date of creation thereof with commercial banks or savings banks or savings and
loan associations each having membership either in the FDIC or the deposits of
which are insured by the FDIC and in amounts not exceeding the maximum amounts
of insurance thereunder, (v) tax-exempt municipal bonds maturing within one
hundred twenty (120) days from the date of acquisition thereof, (vi) any money
market or bank fund investing only in the investments set forth above or (vii)
investments held in trust or escrow accounts subject to government regulation,
legal settlements, collateral requirements or other similar arrangements; and
(c) investments by the Borrower or any of its Subsidiaries in the form of
acquisitions of all, substantially all or a majority of the stock or assets of
the business or a line of business (whether by the acquisition of capital stock,
assets or any combination thereof) of any other Person (each, a "Permitted
Acquisition"); provided that:
(i) the Person to be acquired shall be a going concern, engaged in a
business, or the assets to be acquired shall be used in a business which is
similar, related or complimentary to the line of business of the Borrower and
its Subsidiaries as required pursuant to Section 10.12;
(ii) the Borrower or such Subsidiary (unless the Person to be acquired
complies with Section 8.10), as applicable, shall be the surviving Person and no
Change in Control shall have been effected thereby;
(iii) with respect to any Material Acquisition, the Borrower shall
have delivered written notice of such proposed acquisition to the Administrative
Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders,
which notice shall include the proposed closing date of such proposed
acquisition, not less than twenty (20) calendar days prior to such proposed
closing date;
(iv) with respect to any Material Acquisition, the Borrower shall have
delivered to the Administrative Agent copies of the Permitted Acquisition
Documents;
(v) with respect to any Material Acquisition, the Borrower shall have
certified on or before the closing date of such proposed acquisition, in writing
and in a form reasonably acceptable to the Administrative Agent and the Lenders,
that such proposed acquisition has been approved by the board of directors or
equivalent governing body of the Person to be acquired;
(vi) no Default or Event of Default shall have occurred and be
continuing both before and after giving effect to such proposed acquisition;
(vii) the Borrower shall have complied with Section 8.10;
(viii) with respect to any Material Acquisition, the Borrower shall
have delivered to the Administrative Agent and the Lenders an Officer's
Compliance Certificate dated as of the closing date of such proposed acquisition
demonstrating, in form and substance reasonably satisfactory thereto, pro forma
compliance with each covenant contained in Article IX (both before and after
giving effect to such proposed acquisition) (it being agreed by the Borrower,
the Administrative Agent and the Lenders that such calculations shall assume
that all Debt assumed or incurred in conjunction with such proposed acquisition
was incurred at the beginning of the applicable calculation period and that all
income and expenses associated with such proposed acquisition shall be treated
as earned and included in the pro-forma calculations (both on a consolidated and
consolidating basis));
(ix) the Borrower shall have at least $10,000,000 in Liquidity both
before and after giving effect to such proposed acquisition; and
(x) the Person to be acquired is not subject to material pending
litigation which could reasonably be expected to have a Material Adverse Effect;
(d) investments by the Borrower or any of its Subsidiaries in the form of
acquisitions of less than a majority of the capital stock or other ownership
interests of any other Person; provided that:
(i) the Person to be invested in shall be a going concern, engaged in
a business which is similar, related or complimentary to the line of business of
the Borrower and its Subsidiaries;
(ii) the amount of the investment (regardless of the form of
consideration), together with the aggregate amounts of all other investments
pursuant to this Section 10.3(d), shall not exceed $10,000,000 during the term
of this Agreement;
(iii) neither the Borrower nor any Material Domestic Subsidiary or
Material Foreign Subsidiary shall make any investment in which such party's
potential liability is not limited to the amount of its investment (i.e.,
investments as a general partner, in joint ventures, etc.);
(iv) no Default or Event of Default shall have occurred and be
continuing both before and after giving effect to such proposed investment;
(v) the Borrower shall have complied with Section 8.10;
(vi) the Borrower shall have at least $10,000,000 in Liquidity both
before and after giving effect to such proposed investment; and
(vii) the Person to be invested in is not subject to material pending
litigation which could reasonably be expected to have a Material Adverse Effect.
(e) intercompany loans and advances in connection with intercompany Debt
permitted under Section 10.1(g);
(f) Hedging Agreements permitted pursuant to Section 10.1; and
(g) purchases of assets in the ordinary course of business.
SECTION 10.4 Limitations on Mergers and Liquidation. Merge, consolidate or
enter into any similar combination with any other Person or liquidate, wind-up
or dissolve itself (or suffer any liquidation or dissolution) except:
(a) (i) any Wholly-Owned Domestic Subsidiary of the Borrower may merge with
the Borrower or any other Wholly-Owned Domestic Subsidiary of the Borrower
(provided that (1) in any merger involving the Borrower, the Borrower shall be
the surviving entity and (2) in any merger involving any Subsidiary Guarantor
(and not involving the Borrower), such Subsidiary Guarantor shall be the
surviving entity) and (ii) any Wholly-Owned Foreign Subsidiary of the Borrower
may merge with any other Wholly-Owned Foreign Subsidiary of the Borrower;
(b) (i) any Wholly-Owned Domestic Subsidiary of the Borrower may merge into
the Person such Wholly-Owned Domestic Subsidiary was formed to acquire in
connection with an acquisition permitted by Section 10.3(c) (provided that,
after giving effect to such acquisition, such Person shall be a Wholly-Owned
Domestic Subsidiary and shall comply with the requirements set forth in Section
8.10) and (ii) any Wholly-Owned Foreign Subsidiary of the Borrower may merge
into the Person such Wholly-Owned Foreign Subsidiary was formed to acquire in
connection with an acquisition permitted by Section 10.3(c); and
(c) (i) any Wholly-Owned Domestic Subsidiary of the Borrower may wind-up
into the Borrower or any other Wholly-Owned Domestic Subsidiary of the Borrower
and (ii) any Wholly-Owned Foreign Subsidiary of the Borrower may wind-up into
any other Wholly-Owned Foreign Subsidiary of the Borrower.
SECTION 10.5 Limitations on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, the sale of any receivables and leasehold
interests and any sale-leaseback or similar transaction), whether now owned or
hereafter acquired except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale of assets, for fair market value in the ordinary course of
business, that are no longer used or usable in the business of the Borrower or
any of its Subsidiaries;
(c) the transfer of assets to the Borrower or any Wholly-Owned Subsidiary
of the Borrower pursuant to Section 10.4(c);
(d) the sale or discount without recourse of accounts receivable arising in
the ordinary course of business in connection with the compromise or collection
thereof;
(e) the disposition of any Hedging Agreement;
(f) sales or grants of licenses in the ordinary course of business to use
the patents, trade secrets, know-how and other intellectual property of the
Borrower and its Subsidiaries to the extent that any such license does not
prohibit the Borrower or its Subsidiaries from using any material technologies
licensed unless for due consideration, or require the Borrower or its
Subsidiaries to pay fees for the use of any material technology;
(g) any distribution permitted pursuant to Section 10.6; and
(h) sales of assets by the Borrower or any Subsidiary of the Borrower in an
aggregate amount not to exceed $10,000,000 during the term of this Agreement;
provided that such limitations on the sale of assets shall not include, so long
as no Default or Event of Default has occurred and is continuing, any sale of
assets consisting of property, plant or equipment of Borrower or any of its
Subsidiaries in which the net cash proceeds of such sale are reinvested in
assets consisting of property, plant or equipment (or otherwise in a manner
acceptable to the Administrative Agent in its sole discretion) within two
hundred seventy (270) days after receipt of such net cash proceeds.
SECTION 10.6 Limitations on Dividends and Distributions. Declare or pay any
dividends upon any of its capital stock or any other ownership interests;
purchase, redeem, retire or otherwise acquire, directly or indirectly, any
shares of its capital stock or other ownership interests, or make any
distribution of cash, property or assets among the holders of shares of its
capital stock or other ownership interests, or make any change in its capital
structure; provided that:
(a) the Borrower or any Subsidiary may pay dividends in shares of its own
capital stock;
(b) any Subsidiary may pay cash dividends to the Borrower;
(c) the Borrower may pay cash dividends on its capital stock, purchase,
redeem, retire or otherwise acquire, directly or indirectly, shares of its
capital stock (including purchases of treasury stock), or make distributions of
cash, property or assets among its shareholders in an aggregate amount not to
exceed the lesser of (i) twelve and one-half cents ($0.125) per share in any
calendar quarter, or (ii) $8,000,000 in any calendar year; and
(d) in addition to transactions permitted under subsection (c) above, the
Borrower may pay cash dividends on its capital stock, purchase, redeem, retire
or otherwise acquire, directly or indirectly, shares of its capital stock
(including purchases of treasury stock), or make distributions of cash, property
or assets among its shareholders in an aggregate amount not to exceed, during
the term of this Agreement, the sum of (i) $20,000,000 plus (ii) an amount equal
to fifty percent (50%) of aggregate Net Income of the Borrower and its
Subsidiaries since September 30, 2005.
SECTION 10.7 Limitations on Exchange and Issuance of Capital Stock. Issue,
sell or otherwise dispose of any class or series of capital stock that, by its
terms or by the terms of any security into which it is convertible or
exchangeable, is, or upon the happening of an event or passage of time would be,
(a) convertible or exchangeable into Debt or (b) required to be redeemed or
repurchased, including at the option of the holder, in whole or in part, or has,
or upon the happening of an event or passage of time would have, a redemption or
similar payment due.
SECTION 10.8 Transactions with Affiliates. Except for transactions
permitted by 10.3, 10.6 and 10.7 and those transactions existing on the Closing
Date and identified on Schedule 10.8, directly or indirectly enter into, or be a
party to, any transaction with any of its Affiliates, except pursuant to the
reasonable requirements of its business and upon fair and reasonable terms that
are no less favorable to it than it would obtain in a comparable arm's length
transaction with a Person not its Affiliate.
SECTION 10.9 Certain Accounting Changes; Organizational Documents.
(a) Make any change in its accounting treatment and reporting practices
except as required or permitted by GAAP; or
(b) Amend, modify or change its articles of incorporation (or corporate
charter or other similar organizational documents) or amend, modify or change
its bylaws (or other similar documents) in any manner adverse in any material
respect to the rights or interests of the Lenders.
SECTION 10.10 Amendments; Payments and Prepayments of Subordinated Debt.
Amend or modify (or permit the modification or amendment of) any of the terms or
provisions of any Subordinated Debt, or cancel or forgive, make any elective,
voluntary or optional payment or prepayment on, or redeem or acquire for value
(including, without limitation, by way of depositing with any trustee with
respect thereto money or securities before due for the purpose of paying when
due) any Subordinated Debt.
SECTION 10.11 Restrictive Agreements.
(a) Enter into any Debt which contains any negative pledge on assets or any
covenants more restrictive than the provisions of Articles VIII, IX and X
hereof, or which restricts, limits or otherwise encumbers its ability to incur
Liens on or with respect to any of its assets or properties other than the
assets or properties securing such Debt.
(b) Except as provided in the Existing Bond Documentation, enter into or
permit to exist any agreement which impairs or limits the ability of any
Subsidiary of the Borrower to pay dividends to the Borrower.
SECTION 10.12 Nature of Business. Alter in any material respect the
character or conduct of the business conducted by the Borrower and its
Subsidiaries taken as a whole as of the Closing Date (except as otherwise
permitted by the terms of this Agreement).
SECTION 10.13 Impairment of Security Interests. Take or omit to take any
action, which might or would have the result of materially impairing the
security interests in favor of the Administrative Agent with respect to the
capital stock or other ownership interests of the Material Foreign Subsidiaries
pledged pursuant to the Collateral Agreement or grant to any Person (other than
the Administrative Agent for the benefit of itself and the Lenders pursuant to
the Security Documents) any interest whatsoever in the capital stock or other
ownership interest of the Material Foreign Subsidiaries pledged pursuant to the
Collateral Agreement, except for asset sales permitted under Section 10.5.
SECTION 10.14 Subsidiaries. Allow the Subsidiaries of the Borrower that are
not "Material Domestic Subsidiaries" (including without limitation, Subsidiaries
designated as Material Domestic Subsidiaries pursuant to subsection (c) of the
definition of Material Domestic Subsidiary) or "Material Foreign Subsidiaries"
(including without limitation, Subsidiaries designated as Material Foreign
Subsidiaries pursuant to subsection (c) of the definition of Material Foreign
Subsidiary) to have total net assets equal to or greater than ten percent (10%)
of total net assets of the Borrower and its Subsidiaries at any time.
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 Events of Default. Each of the following shall constitute an
Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement Obligations.
The Borrower shall default in any payment of principal of any Loan, Note or
Reimbursement Obligation when and as due (whether at maturity, by reason of
acceleration or otherwise).
(b) Other Payment Default. The Borrower shall default in the payment when
and as due (whether at maturity, by reason of acceleration or otherwise) of (i)
interest on any Loan, Note or Reimbursement Obligation, and such default shall
continue unremedied for five (5) Business Days or (ii) any other Obligation, and
such default shall continue unremedied for ten (10) Business Days.
(c) Misrepresentation. Any representation or warranty made or deemed to be
made by the Borrower or any of its Subsidiaries under this Agreement, any other
Loan Document or any amendment hereto or thereto, shall at any time prove to
have been incorrect or misleading in any material respect when made or deemed
made.
(d) Default in Performance of Certain Covenants. The Borrower or any of its
Subsidiaries shall default in the performance or observance of any covenant or
agreement contained in Sections 7.1, 7.2 or 7.4(b)(i) or Articles IX or X of
this Agreement, and the Borrower's failure to perform or observe any covenant or
agreement in Section 7.1 or 7.2 shall continue unremedied for ten (10) Business
Days (during which time the Applicable Margin shall be based on Pricing Level
I).
(e) Default in Performance of Other Covenants and Conditions. The Borrower
or any Subsidiary thereof shall default in the performance or observance of any
term, covenant, condition or agreement contained in this Agreement (other than
as specifically provided for otherwise in this Section 11.1) or any other Loan
Document and such default shall continue for a period of thirty (30) days after
written notice thereof has been given to the Borrower by the Administrative
Agent.
(f) Hedging Agreement. The Borrower shall default in the performance or
observance of any terms, covenant, condition or agreement (after giving effect
to any applicable grace or cure period) under any Hedging Agreement with respect
to any Debt or other obligation in a principal amount in excess of $3,000,000
and such default causes the termination of such Hedging Agreement or permits any
counterparty to such Hedging Agreement to terminate any such Hedging Agreement.
(g) Debt Cross-Default. The Borrower or any of its Subsidiaries shall (i)
default in the payment of any Debt (other than the Notes or any Reimbursement
Obligation) the aggregate outstanding amount of which Debt is in excess of
$3,000,000 beyond the period of grace if any, provided in the instrument or
agreement under which such Debt was created, or (ii) default in the observance
or performance of any other agreement or condition relating to any Debt (other
than the Notes or any Reimbursement Obligation) the aggregate outstanding amount
of which Debt is in excess of $3,000,000 or contained in any instrument or
agreement evidencing, securing or relating thereto or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Debt (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, any such Debt to become due prior to its stated maturity
(any applicable grace period having expired).
(h) Change in Control. (i) The sale, lease or transfer of all or
substantially all of the Borrower's assets to any person or group of persons
(within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as
amended), (ii) the liquidation or dissolution of the Borrower, (iii) any person
or group of persons (within the meaning of Section 13(d) of the Securities
Exchange Act of 1934, as amended), other than the Permitted Holders, shall
obtain ownership or control in one or more series of transactions of more than
thirty-five percent (35%) of the common stock or thirty-five percent (35%) of
the voting power of the Borrower entitled to vote in the election of members of
the board of directors of the Borrower or (iv) during any period of twelve (12)
consecutive calendar months, individuals who, at the beginning of such period,
constituted the Borrower's board of directors (together with any new directors
whose election by the Borrower's board of directors or whose nomination for
election by the Borrower's stockholders was approved by a vote of at least
two-thirds (2/3rds) 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, other than death or
disability, to constitute a majority of the directors then in office (any such
event, a "Change in Control").
(i) Voluntary Bankruptcy Proceeding. The Borrower or any Subsidiary thereof
shall (i) commence a voluntary case under the federal bankruptcy laws (as now or
hereafter in effect), (ii) file a petition seeking to take advantage of any
other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts, (iii) consent
to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (iv)
apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, or liquidator of itself or of a substantial part of its property,
domestic or foreign, (v) admit in writing its inability to pay its debts as they
become due, (vi) make a general assignment for the benefit of creditors, or
(vii) take any corporate action for the purpose of authorizing any of the
foregoing.
(j) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
commenced against the Borrower or any Material Domestic Subsidiary thereof in
any court of competent jurisdiction seeking (i) relief under the federal
bankruptcy laws (as now or hereafter in effect) or under any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding
up or adjustment of debts, or (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like for the Borrower or any Material Domestic
Subsidiary thereof or for all or any substantial part of their respective
assets, domestic or foreign, and such case or proceeding shall continue without
dismissal or stay for a period of sixty (60) consecutive days, or an order
granting the relief requested in such case or proceeding (including, but not
limited to, an order for relief under such federal bankruptcy laws) shall be
entered.
(k) Failure of Agreements. This Agreement or any other Loan Document, at
any time after its execution and delivery and for any reason other than as
expressly permitted hereunder or the satisfaction in full of all of the
Obligations, ceases to be in full force and effect; or the Borrower, any
Subsidiary Guarantor or any other Affiliate contests in any manner the validity
or enforceability of this Agreement or any other Loan Document; or the Borrower
or any Subsidiary Guarantor denies that it has any or further liability or
obligation under this Agreement or any other Loan Document, or purports to
revoke, terminate or rescind this Agreement or any other Loan Document.
(l) Termination Event. The occurrence of any of the following events: (i)
the Borrower or any ERISA Affiliate fails to make full payment when due of all
amounts which, under the provisions of any Pension Plan or Section 412 of the
Code, the Borrower or any ERISA Affiliate is required to pay as contributions
thereto, (ii) an accumulated funding deficiency in excess of $5,000,000 occurs
or exists, whether or not waived, with respect to any Pension Plan, (iii) a
Termination Event or (iv) the Borrower or any ERISA Affiliate as employers under
one or more Multiemployer Plans makes a complete or partial withdrawal from any
such Multiemployer Plan and the plan sponsor of such Multiemployer Plans
notifies such withdrawing employer that such employer has incurred a withdrawal
liability requiring payments in an amount exceeding $5,000,000.
(m) Judgment. A judgment or order for the payment of money which causes the
aggregate amount of all such judgments to exceed $5,000,000 in any Fiscal Year
shall be entered against the Borrower or any of its Subsidiaries by any court
and such judgment or order shall continue without discharge or stay for a period
of sixty (60) days.
(n) Environmental. Any one or more Environmental Claims shall have been
asserted against the Borrower or any of its Subsidiaries; the Borrower and its
Subsidiaries would be reasonable likely to incur liability as a result thereof;
and such liability would be reasonably likely, individually or in the aggregate,
to have a Material Adverse Effect.
SECTION 11.2 Remedies. Upon the occurrence of an Event of Default, with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower:
(a) Acceleration; Termination of Facilities. Declare the principal of and
interest on the Loans, the Notes and the Reimbursement Obligations at the time
outstanding, and all other amounts owed to the Lenders and to the Administrative
Agent under this Agreement or any of the other Loan Documents (including,
without limitation, all L/C Obligations, whether or not the beneficiaries of the
then outstanding Letters of Credit shall have presented or shall be entitled to
present the documents required thereunder) and all other Obligations (other than
Hedging Obligations), to be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment, demand, protest or other
notice of any kind, all of which are expressly waived, anything in this
Agreement or the other Loan Documents to the contrary notwithstanding, and
terminate the Credit Facility and any right of the Borrower to request
borrowings or Letters of Credit thereunder; provided, that upon the occurrence
of an Event of Default specified in Section 11.1(i) or (j), the Credit Facility
shall be automatically terminated and all Obligations (other than Hedging
Obligations) shall automatically become due and payable without presentment,
demand, protest or other notice of any kind, all of which are expressly waived,
anything in this Agreement or in any other Loan Document to the contrary
notwithstanding.
(b) Letters of Credit. With respect to all Letters of Credit with respect
to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, require the Borrower at such
time to, and the Borrower shall, deposit in a cash collateral account opened by
the Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. Amounts held in such cash collateral
account shall be applied by the Administrative Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay the other Obligations on a pro rata basis. After all
such Letters of Credit shall have expired or been fully drawn upon, the
Reimbursement Obligation shall have been satisfied and all other Obligations
shall have been paid in full, the balance, if any, in such cash collateral
account shall be returned to the Borrower.
(c) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrower's Obligations.
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the other Loan Documents or that may now or hereafter exist
at law or in equity or by suit or otherwise. No delay or failure to take action
on the part of the Administrative Agent or any Lender in exercising any right,
power or privilege shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
or shall be construed to be a waiver of any Event of Default. No course of
dealing between the Borrower, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
SECTION 11.4. Judgment Currency. The obligation of the Borrower to make
payments of the principal of and interest on the Notes and the obligation of any
such Person to make payments of any other amounts payable hereunder or pursuant
to any other Loan Document in the currency specified for such payment shall not
be discharged or satisfied by any tender, or any recovery pursuant to any
judgment, which is expressed in or converted into any other currency, except to
the extent that such tender or recovery shall result in the actual receipt by
each of the Administrative Agent and Lenders of the full amount of the
particular Permitted Currency expressed to be payable pursuant to the applicable
Loan Document. The Administrative Agent shall, using all amounts obtained or
received from the Borrower pursuant to any such tender or recovery in payment of
principal of and interest on the Obligations, promptly purchase the applicable
currency at the most favorable spot exchange rate (to the Borrower) determined
by the Administrative Agent to be available to it. The obligation of the
Borrower to make payments in the applicable currency shall be enforceable as an
alternative or additional cause of action solely for the purpose of recovering
in the applicable currency the amount, if any, by which such actual receipt
shall fall short of the full amount of the currency expressed to be payable
pursuant to the applicable Loan Document.
ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1 Appointment. Each of the Lenders hereby irrevocably designates
and appoints Wachovia as Administrative Agent of such Lender under this
Agreement and the other Loan Documents for the term hereof and each such Lender
irrevocably authorizes Wachovia as Administrative Agent for such Lender, to take
such action on its behalf under the provisions of this Agreement and the other
Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and such other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement or such other Loan Documents, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein and
therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or the other Loan Documents or otherwise exist
against the Administrative Agent. Any reference to the Administrative Agent in
this Article XII shall be deemed to refer to the Administrative Agent solely in
its capacity as Administrative Agent and not in its capacity as a Lender.
SECTION 12.2 Delegation of Duties. The Administrative Agent may execute any
of its respective duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by the Administrative Agent with reasonable care.
SECTION 12.3 Exculpatory Provisions. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or the other Loan Documents (except for actions occasioned solely by
its or such Person's own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any of its Subsidiaries or
any officer thereof contained in this Agreement or the other Loan Documents 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 Agreement or the other Loan Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
the other Loan Documents or for any failure of the Borrower or any of its
Subsidiaries to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Borrower or any of its Subsidiaries.
SECTION 12.4 Reliance by the Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless such Note shall have been
transferred in accordance with Section 13.10. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
and the other Loan Documents unless it shall first receive such advice or
concurrence of the Required Lenders (or, when expressly required hereby or by
the relevant other Loan Documents, all the Lenders) as it deems appropriate or
it shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action except for its own gross negligence or
willful misconduct. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
Notes in accordance with a request of the Required Lenders (or, when expressly
required hereby, all the Lenders), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
SECTION 12.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default unless it has received notice from a Lender or the Borrower referring to
this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, it shall promptly give notice thereof to the Lenders.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or,
when expressly required hereby, all the Lenders); provided that unless and until
the Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders, except to the extent that
other provisions of this Agreement expressly require that any such action be
taken or not be taken only with the consent and authorization or the request of
the Lenders or Required Lenders, as applicable.
SECTION 12.6 Non-Reliance on the Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its respective officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates has made any representations or warranties to it and
that no act by the Administrative Agent hereafter taken, including any review of
the affairs of the Borrower or any of its Subsidiaries, shall be deemed to
constitute any representation or warranty by the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and its Subsidiaries and made its own decision to make its Loans and
issue or participate in Letters of Credit hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and its Subsidiaries. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder or by the other Loan Documents, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, financial and other
condition or creditworthiness of the Borrower or any of its Subsidiaries which
may come into the possession of the Administrative Agent or any of its
respective officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates.
SECTION 12.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such and (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to the respective amounts of their Commitment Percentages,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes or any Reimbursement Obligation) be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or the other Loan Documents, or any
documents, reports or other information provided to the Administrative Agent or
any Lender or contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's bad faith, gross negligence or willful misconduct. The agreements in
this Section 12.7 shall survive the payment of the Notes, any Reimbursement
Obligation and all other amounts payable hereunder and the termination of this
Agreement.
SECTION 12.8 The Administrative Agent in Its Individual Capacity. The
Administrative Agent and its respective Subsidiaries and Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Borrower as though the Administrative Agent were not the Administrative
Agent hereunder. With respect to any Loans made or renewed by it and any Note
issued to it and with respect to any Letter of Credit issued by it or
participated in by it, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not the Administrative Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agent in its individual
capacity.
SECTION 12.9 Resignation of the Administrative Agent; Successor
Administrative Agent. Subject to the appointment and acceptance of a successor
as provided below, the Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, which successor shall have minimum capital and surplus of at least
$500,000,000. If no successor Administrative Agent shall have been so appointed
by the Required Lenders and shall have accepted such appointment within thirty
(30) days after the Administrative Agent's giving of notice of resignation, then
the Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which successor shall have minimum capital and surplus of
at least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section 12.9 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
SECTION 12.10 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 the Borrower or any Guarantor, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C 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, the L/C Obligations and all
other 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 Administrative
Agent and the Lenders (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and the Lenders
and their respective agents and counsel and all other amounts due the
Administrative Agent and the Lenders under this Agreement, including, without
limitation, Section 3.3, Section 4.3 and Section 13.2) 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 this Agreement (including, without limitation,
Section 4.3 and Section 13.2).
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
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.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing (for
purposes hereof, the term "writing" shall include information in electronic
format such as electronic mail and internet web pages), or by telephone
subsequently confirmed in writing. Any notice shall be effective if delivered by
hand delivery or sent via electronic mail, posting on an internet web page,
telecopy, recognized overnight courier service or certified mail, return receipt
requested, and shall be presumed to be received by a party hereto (i) on the
date of delivery if delivered by hand or sent by electronic mail, posting on an
internet web page, telecopy, (ii) on the next Business Day if sent by recognized
overnight courier service and (iii) on the third Business Day following the date
sent by certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at the
following addresses, or any other address as to which all the other parties are
notified in writing.
If to the Borrower: CompX International Inc.
Three Lincoln Centre
5430 LBJ Freeway, Suite 1700
Dallas, Texas 75240-2697
Attention: J. Mark Hollingsworth
Telephone No.: (972) 233-1700
Telecopy No.: (972) 448-1445
If to Wachovia as Wachovia Bank, National Association
Administrative Agent: Charlotte Plaza, CP-8
201 South College Street
Charlotte, North Carolina 28288-0680
Attention: Syndication Agency Services
Telephone No.: (704) 374-2698
Telecopy No.: (704) 383-0288
With a copy to: Womble Carlyle Sandridge & Rice, PLLC
One West Fourth Street
Winston-Salem, North Carolina 27101
Attention: Christopher E. Leon
Telephone No.: (336) 721-3518
Telecopy No.: (336) 726-6932
If to any Lender: To the address set forth on Schedule 1.1(a)
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrower and Lenders, as the Administrative Agent's Office referred to herein,
to which payments due are to be made and at which Loans will be disbursed and
Letters of Credit issued, except for Alternative Currency Loans, to which
payments due are to be made at the office of the Administrative Agent's
Correspondent.
SECTION 13.2 Expenses; Indemnity. The Borrower will (a) pay all reasonable
out-of-pocket expenses (including, without limitation, all costs of electronic
or internet distribution of any information hereunder) of the Administrative
Agent in connection with (i) the preparation, execution and delivery of this
Agreement and each other Loan Document, whenever the same shall be executed and
delivered, including, without limitation, all out-of-pocket syndication and due
diligence expenses and reasonable fees and disbursements of counsel for the
Administrative Agent and (ii) the preparation, execution and delivery of any
waiver, amendment or consent by the Administrative Agent or the Lenders relating
to this Agreement or any other Loan Document, including, without limitation,
reasonable fees and disbursements of counsel for the Administrative Agent, (b)
pay all reasonable out-of-pocket expenses of the Administrative Agent and each
Lender actually incurred in connection with the administration and enforcement
of any rights and remedies of the Administrative Agent and Lenders under the
Credit Facility, including, without limitation, in connection with any workout,
restructuring, bankruptcy or other similar proceeding, creating and perfecting
Liens in favor of Administrative Agent on behalf of Lenders pursuant to any
Security Document, enforcing any Obligations of, or collecting any payments due
from, the Borrower or any Subsidiary Guarantor by reason of an Event of Default
(including in connection with the sale of, collection from, or other realization
upon any of the Collateral or the enforcement of the Subsidiary Guaranty
Agreement), consulting with appraisers, accountants, engineers, attorneys and
other Persons concerning the nature, scope or value of any right or remedy of
the Administrative Agent or any Lender hereunder or under any other Loan
Document or any factual matters in connection therewith, which expenses shall
include, without limitation, the reasonable fees and disbursements of such
Persons, and (c) defend, indemnify and hold harmless the Administrative Agent
and the Lenders, and their respective parents, Subsidiaries, Affiliates,
employees, agents, officers and directors, from and against any losses,
penalties, fines, liabilities, settlements, damages, costs and expenses,
suffered by any such Person in connection with any claim (including, without
limitation, any Environmental Claims), investigation, litigation or other
proceeding (whether or not the Administrative Agent or any Lender is a party
thereto) and the prosecution and defense thereof, arising out of or in any way
connected with the Loans, this Agreement, any other Loan Document or any
documents, reports or other information provided to the Administrative Agent or
any Lender or contemplated by or referred herein or therein or the transactions
contemplated hereby or thereby, including, without limitation, reasonable
attorney's and consultant's fees and settlement costs, except to the extent that
any of the foregoing directly result from the gross negligence or willful
misconduct of the party seeking indemnification therefor.
SECTION 13.3 Set-off.
(a) In addition to any rights now or hereafter granted under Applicable Law
and not by way of limitation of any such rights, upon and after the occurrence
of any Event of Default and during the continuance thereof, the Lenders and any
assignee or participant of a Lender in accordance with Section 13.10 are hereby
authorized by the Borrower at any time or from time to time, without notice to
the Borrower or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and to apply any and all deposits (general
or special, time or demand, including, but not limited to, indebtedness
evidenced by certificates of deposit, whether matured or unmatured) and any
other indebtedness at any time held or owing by the Lenders, or any such
assignee or participant to or for the credit or the account of the Borrower
against and on account of the Obligations irrespective of whether or not (a) the
Lenders shall have made any demand under this Agreement or any of the other Loan
Documents or (b) the Administrative Agent shall have declared any or all of the
Obligations to be due and payable as permitted by Section 11.2 and although such
Obligations shall be contingent or unmatured. Notwithstanding the preceding
sentence, each Lender agrees to notify the Borrower and the Administrative Agent
after any such set-off and application; provided, that the failure to give such
notice shall not affect the validity of such set-off and application.
(b) Any amount to be set-off pursuant to Section 13.3(a) shall be
denominated in Dollars and any amount denominated in an Alternative Currency
shall be in an amount equal to the Dollar Amount of such amount at the most
favorable spot exchange rate (to the Borrower) determined by the Administrative
Agent to be available to it; provided that if at the time of any such
determination no such spot exchange rate can reasonably be determined, the
Administrative Agent may use any reasonable method as it deems applicable to
determine such rate, any such determination to be conclusive absent manifest
error.
(c) Each Lender and any assignee or participant of such Lender in
accordance with Section 13.10 are hereby authorized by the Borrower to combine
currencies, as deemed necessary by such Person, in order to effect any set-off
pursuant to Section 13.3(a).
SECTION 13.4 Governing Law. This Agreement, the Notes and the other Loan
Documents, unless otherwise expressly set forth therein, shall be governed by,
construed and enforced in accordance with the laws of the State of North
Carolina, without reference to the conflicts or choice of law principles
thereof.
SECTION 13.5 Jurisdiction and Venue.
(a) Jurisdiction. The Borrower hereby irrevocably consents to the personal
jurisdiction of the state and federal courts located in Mecklenburg County,
North Carolina (and any courts from which an appeal from any of such courts must
or may be taken), in any action, claim or other proceeding arising out of any
dispute in connection with this Agreement, the Notes and the other Loan
Documents, any rights or obligations hereunder or thereunder, or the performance
of such rights and obligations. The Borrower hereby irrevocably consents to the
service of a summons and complaint and other process in any action, claim or
proceeding brought by the Administrative Agent or any Lender in connection with
this Agreement, the Notes or the other Loan Documents, any rights or obligations
hereunder or thereunder, or the performance of such rights and obligations, on
behalf of itself or its property, in the manner specified in Section 13.1.
Nothing in this Section 13.5 shall affect the right of the Administrative Agent
or any Lender to serve legal process in any other manner permitted by Applicable
Law or affect the right of the Administrative Agent or any Lender to bring any
action or proceeding against the Borrower or its properties in the courts of any
other jurisdictions.
(b) Venue. The Borrower hereby irrevocably waives any objection it may have
now or in the future to the laying of venue in the aforesaid jurisdiction in any
action, claim or other proceeding arising out of or in connection with this
Agreement, any other Loan Document or the rights and obligations of the parties
hereunder or thereunder. The Borrower irrevocably waives, in connection with
such action, claim or proceeding, any plea or claim that the action, claim or
other proceeding has been brought in an inconvenient forum.
SECTION 13.6 Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of the Borrower, the Administrative
Agent or the Required Lenders, whether made before or after institution of any
judicial proceeding, any dispute, claim or controversy arising out of, connected
with or relating to this Agreement or any other Loan Document ("Disputes"),
between or among parties hereto and to the other Loan Documents shall be
resolved by binding arbitration as provided herein. Institution of a judicial
proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims,
counterclaims, claims brought as class actions, claims arising from Loan
Documents executed in the future, disputes as to whether a matter is subject to
arbitration, or claims concerning any aspect of the past, present or future
relationships arising out of or connected with the Loan Documents. Arbitration
shall be conducted under and governed by the Commercial Financial Disputes
Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association (the "AAA") and the Federal Arbitration Act. All arbitration
hearings shall be conducted in Charlotte, North Carolina. The expedited
procedures set forth in Rule 51, et seq. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000. All applicable statutes of
limitations shall apply to any Dispute. A judgment upon the award may be entered
in any court having jurisdiction. Notwithstanding anything foregoing to the
contrary, any arbitration proceeding demanded hereunder shall begin within
ninety (90) days after such demand thereof and shall be concluded within
one-hundred twenty (120) days after such demand. These time limitations may not
be extended unless a party hereto shows cause for extension and then such
extension shall not exceed a total of sixty (60) days. The panel from which all
arbitrators are selected shall be comprised of licensed attorneys selected from
the Commercial Financial Dispute Arbitration Panel of the AAA. The single
arbitrator selected for expedited procedure shall be a retired judge from the
highest court of general jurisdiction, state or federal, of the state where the
hearing will be conducted. The parties hereto do not waive any applicable
Federal or state substantive law except as provided herein. Notwithstanding the
foregoing, this paragraph shall not apply to any Hedging Agreement.
(b) Jury Trial. THE ADMINISTRATIVE AGENT, EACH LENDER AND THE BORROWER
HEREBY ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY
WAIVED THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM
OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the preceding binding
arbitration provisions, the parties hereto and the other Loan Documents
preserve, without diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a Dispute. Each
such Person shall have and hereby reserves the right to proceed in any court of
proper jurisdiction or by self help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any real or
personal property or other security by exercising a power of sale granted in the
Loan Documents or under Applicable Law or by judicial foreclosure and sale,
including a proceeding to confirm the sale, (ii) all rights of self help
including peaceful occupation of property and collection of rents, set off, and
peaceful possession of property, (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and in filing an involuntary bankruptcy proceeding, and
(iv) when applicable, a judgment by confession of judgment. Preservation of
these remedies does not limit the power of an arbitrator to grant similar
remedies that may be requested by a party in a Dispute.
SECTION 13.7 Reversal of Payments. To the extent the Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
Collateral, which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
SECTION 13.8 Injunctive Relief; Punitive Damages.
(a) The Borrower recognizes that, in the event the Borrower fails to
perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrower agrees that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Administrative Agent, the Lenders and the Borrower (on behalf of
itself and its Subsidiaries) hereby agree that no such Person shall have a
remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
SECTION 13.9 Accounting Matters. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time, provided that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance therewith.
SECTION 13.10 Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent and the Lenders, all
future holders of the Notes, and their respective successors and assigns, except
that the Borrower shall not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of each Lender.
(b) Assignment by Lenders. Each Lender may, in the ordinary course of its
business and in accordance with Applicable Law, sell or assign to any Lender,
any Affiliate of a Lender and with the consent of the Borrower (so long as no
Default or Event of Default has occurred and is continuing) and the consent of
the Administrative Agent, which consents shall not be unreasonably withheld or
delayed, assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Agreement and the other Loan
Documents (including, without limitation, all or a portion of the Extensions of
Credit at the time owing to it and the Notes held by it); provided that:
(i) each such assignment shall be of a constant, and not a varying,
percentage of all the assigning Lender's rights and obligations under this
Agreement;
(ii) if less than all of the assigning Lender's Commitment is to be
assigned, the Commitment so assigned shall not be less than $5,000,000;
(iii) the parties to each such assignment shall execute and deliver to
the Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance substantially in the form of Exhibit G attached hereto
(an "Assignment and Acceptance"), together with (to the extent requested by any
Purchasing Lender) any Note or Notes subject to such assignment;
(iv) where consent of the Borrower to an assignment to a Purchasing
Lender is required hereunder (including consent to an assignment to an Approved
Fund), the Borrower shall be deemed to have given its consent five (5) Business
Days after the date written notice thereof has been delivered by the assigning
Lender (through the Administrative Agent) unless such consent is expressly
refused by the Borrower prior to such fifth (5th) Business Day;
(v) such assignment shall not, without the consent of the Borrower
require the Borrower to file a registration statement with the Securities and
Exchange Commission or apply to or qualify the Loans or the Notes under the blue
sky laws of any state; and
(vi) the assigning Lender shall pay to the Administrative Agent an
assignment fee of $3,500 upon the execution by such Lender of the Assignment and
Acceptance; provided that no such fee shall be payable upon any assignment by a
Lender to an Affiliate of such Lender.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof (unless
otherwise agreed to by the Administrative Agent), (A) the Purchasing Lender
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the Purchasing
Lender thereunder confirm to and agree with each other and the other parties
hereto as set forth in such Assignment and Acceptance.
(d) Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amount of the Extensions of
Credit with respect to each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Administrative Agent and the Lenders may treat each person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Issuance of New Notes. Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and a Purchasing Lender together with any Note
or Notes (if applicable) subject to such assignment and (if applicable) the
written consent to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is substantially in the form of
Exhibit G:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the Register;
(iii) give prompt notice thereof to the Lenders and the Borrower; and
(iv) promptly deliver a copy of such Assignment and Acceptance to the
Borrower.
Within five (5) Business Days after receipt of notice, the Borrower shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Note or Notes, a new Note or Notes to the order of such Purchasing Lender (to
the extent requested thereby) in amounts equal to the Commitment assumed by it
pursuant to such Assignment and Acceptance and a new Note or Notes to the order
of the assigning Lender (to the extent requested thereby) in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of the assigned
Notes delivered to the assigning Lender. Each surrendered Note or Notes shall be
canceled and returned to the Borrower. Notwithstanding anything in this
Agreement to the contrary, any Lender which has not been issued a Note or Notes
hereunder may at any time deliver a written request for a Note or Notes to the
Administrative Agent and the Borrower. Within five (5) Business Days after
receipt of notice, the Borrower shall execute and deliver to the Administrative
Agent, a Note or Notes (as applicable) to the order of such Lender in amounts
equal to the Commitment of such Lender. Upon receipt thereby, the Administrative
Agent shall promptly deliver such Note or Notes to such Lender.
(f) Participations. Each Lender may, without notice to or the consent of
the Borrower or the Administrative Agent, in the ordinary course of its
commercial banking business and in accordance with Applicable Law, sell
participations to one or more banks or other entities (any such bank or other
entity, a "Participant") in all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Extensions of Credit and the Notes held by it); provided that:
(i) each such participation shall be in an amount not less than
$5,000,000;
(ii) such Lender's obligations under this Agreement (including,
without limitation, its Commitment) shall remain unchanged;
(iii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations;
(iv) such Lender shall remain the holder of the Notes held by it for
all purposes of this Agreement;
(v) 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 Agreement;
(vi) such Lender shall not permit such Participant the right to
approve any waivers, amendments or other modifications to this Agreement or any
other Loan Document other than waivers, amendments or modifications which would
reduce the principal of or the interest rate on any Loan or Reimbursement
Obligation, extend the term or increase the amount of the Commitment, reduce the
amount of any fees to which such Participant is entitled, extend any scheduled
payment date for principal of any Loan or, except as expressly contemplated
hereby or thereby, release substantially all of the Collateral or any Security
Document; and
(vii) any such disposition shall not, without the consent of the
Borrower require the Borrower to file a registration statement with the
Securities and Exchange Commission to apply to qualify the Loans or the Notes
under the blue sky law of any state.
The Borrower agrees that each Participant shall be entitled to the benefits
of Section 4.7, Section 4.8, Section 4.9, Section 4.10, Section 4.11, Section
4.12, Section 4.13 and Section 13.3 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b) of this
Section 13.10; provided that a Participant shall not be entitled to receive any
greater payment under Section 4.7, Section 4.8, Section 4.9, Section 4.10,
Section 4.11, Section 4.12, and Section 4.13 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 and such Participant shall have
delivered to the Administrative Agent all United States Internal Revenue Service
Forms required pursuant to Section 4.13(e).
(g) Disclosure of Information; Confidentiality. The Administrative Agent
and the Lenders shall hold all non-public information with respect to the
Borrower obtained pursuant to the Loan Documents (or any Hedging Agreement with
a Lender or the Administrative Agent) in accordance with their customary
procedures for handling confidential information; provided, that the
Administrative Agent may disclose information relating to this Agreement to Gold
Sheets and other similar bank trade publications, such information to consist of
deal terms and other information customarily found in such publications and
provided further, that the Administrative Agent or any Lender may disclose any
such information to the extent such disclosure is (i) required by law or
requested or required pursuant to any legal process, (ii) requested by, or
required to be disclosed to, any rating agency, or regulatory or similar
authority (including, without limitation, the National Association of Insurance
Commissioners) or (iii) used in any suit, action or proceeding for the purpose
of defending itself, reducing its liability or protecting any of its claims,
rights, remedies or interests under or in connection with the Loan Documents (or
any Hedging Agreement with a Lender or the Administrative Agent). Any Lender
may, in connection with any assignment, proposed assignment, participation or
proposed participation pursuant to this Section 13.10, disclose to the
Purchasing Lender, proposed Purchasing Lender, Participant, proposed
Participant, or to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor any
information relating to the Borrower furnished to such Lender by or on behalf of
the Borrower; provided, that prior to any such disclosure, each such Purchasing
Lender, proposed Purchasing Lender, Participant or proposed Participant,
contractual counterparty or professional advisor shall agree to be bound by the
provisions of this Section 13.10(g).
(h) Certain Pledges or Assignments. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement or any other Loan Document to secure obligations of such Lender,
including, without limitation, any pledge or assignment to secure obligations to
a Federal Reserve Bank; provided that no such pledge or assignment of a security
interest shall release a Lender form any of its obligations hereunder or
substitute such pledgee or assignee for such Lender as a party hereto.
SECTION 13.11 Amendments, Waivers and Consents. Except as set forth below
or as specifically provided in the Credit Agreement or any other Loan Document,
any term, covenant, agreement or condition of this Agreement or any of the other
Loan Documents may be amended or waived by the Lenders, and any consent given by
the Lenders, if, but only if, such amendment, waiver or consent is in writing
signed by the Required Lenders (or by the Administrative Agent with the consent
of the Required Lenders) and delivered to the Administrative Agent and, in the
case of an amendment, signed by the Borrower; provided that no amendment, waiver
or consent shall (a) increase (i) the Commitment of any Lender, (ii) the
Alternative Currency Commitment or (iii) the Swingline Commitment, (b) reduce
the rate of interest or fees payable on any Loan or Reimbursement Obligation,
(c) reduce or forgive the principal amount of any Loan or Reimbursement
Obligation, (d) extend the originally scheduled time or times of payment of the
principal of any Loan or Reimbursement Obligation or the time or times of
payment of interest on any Loan or Reimbursement Obligation or any fee or
commission with respect thereto, (e) permit any subordination of the principal
or interest on any Loan or Reimbursement Obligation, (f) release the Borrower
from the Obligations (other than Hedging Obligations) hereunder, (g) release any
Subsidiary Guarantor from its obligations under the Subsidiary Guaranty
Agreement, (h) permit any assignment (other than as specifically permitted or
contemplated in this Agreement) of any of the Borrower's rights and obligations
hereunder, (i) release any Collateral or any Security Documents (other than
asset sales permitted pursuant to Section 10.5 and as otherwise specifically
permitted or contemplated in this Agreement or the applicable Security
Document), (j) amend the definition of Alternative Currency, (k) amend the
provisions of this Section 13.11 or the definition of Required Lenders, or (l)
extend the time of the obligation of the Lenders to make or issue or participate
in Letters of Credit, in each case, without the prior written consent of each
Lender. In addition, no amendment, waiver or consent to the provisions (a) of
Article XII shall be made without the written consent of the Administrative
Agent, (b) of Article III shall be made without the written consent of the
Issuing Lender, (c) relating to Swingline Loans or the Swingline Facility shall
be made without the written consent of the Swingline Lender and (d) relating to
Alternative Currency Loans or the Alternative Currency Facility shall be made
without the written consent of the Alternative Currency Lender.
SECTION 13.12 Performance of Duties. The Borrower's obligations under this
Agreement and each of the other Loan Documents shall be performed by the
Borrower at its sole cost and expense.
SECTION 13.13 All Powers Coupled with Interest. All powers of attorney and
other authorizations granted to the Lenders, the Administrative Agent and any
Persons designated by the Administrative Agent or any Lender pursuant to any
provisions of this Agreement or any of the other Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied, any of the Commitments remain in
effect or the Credit Facility has not been terminated.
SECTION 13.14 Survival of Indemnities. Notwithstanding any termination of
this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article XIII and any other
provision of this Agreement and the other Loan Documents shall continue in full
force and effect and shall protect the Administrative Agent and the Lenders
against events arising after such termination as well as before.
SECTION 13.15 Titles and Captions. Titles and captions of Articles,
Sections and subsections in, and the table of contents of, this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 13.16 Severability of Provisions. Any provision of this Agreement
or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 13.17 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and shall be binding
upon all parties, their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
SECTION 13.18 Term of Agreement. This Agreement shall remain in effect from
the Closing Date through and including the date upon which all Obligations
arising hereunder or under any other Loan Document shall have been indefeasibly
and irrevocably paid and satisfied in full and all Commitments have been
terminated. The Administrative Agent is hereby permitted to release all security
interests in the capital stock or other ownership interests of the Material
Foreign Subsidiaries pledged pursuant to the Collateral Agreement in favor of
the Administrative Agent, for the ratable benefit of itself and the Lenders,
upon repayment of the outstanding principal of and all accrued interest on the
Loans, payment of all outstanding fees and expenses hereunder and the
termination of the Lender's Commitments. No termination of this Agreement shall
affect the rights and obligations of the parties hereto arising prior to such
termination or in respect of any provision of this Agreement which survives such
termination.
SECTION 13.19 Advice of Counsel. Each of the parties represents to each
other party hereto that it has discussed this Agreement with its counsel.
SECTION 13.20 No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
SECTION 13.21 Inconsistencies with Other Documents; Independent Effect of
Covenants.
(a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement shall
control; provided, that any provision of the Security Documents which imposes
additional burdens on the Borrower or its Subsidiaries or further restricts the
rights of the Borrower or its Subsidiaries or gives the Administrative Agent or
Lenders additional rights shall not be deemed to be in conflict or inconsistent
with this Agreement and shall be given full force and effect.
(b) The Borrower expressly acknowledges and agrees that each covenant
contained in Articles VIII, IX, or X hereof shall be given independent effect.
Accordingly, the Borrower shall not engage in any transaction or other act
otherwise permitted under any covenant contained in Articles VIII, IX, or X if,
before or after giving effect to such transaction or act, the Borrower shall or
would be in breach of any other covenant contained in Articles VIII, IX, or X.
SECTION 13.22 Continuity of Contract. The parties hereto agree that the
occurrence or non-occurrence of EMU, any event or events associated with EMU
and/or the introduction of the euro in any additional part of the European Union
(a) will not result in the discharge, cancellation, rescission or termination in
whole or in part of this Agreement or any other Loan Document, (b) will not give
any party the right to cancel, rescind, terminate or vary this Agreement or any
other Loan Document or (c) will not give rise to an Event of Default, in each
case other than as specifically provided in this Agreement.
SECTION 13.23 Release of Collateral. The parties hereto agree that at
Closing, all of the mortgages and security interests granted to the
Administrative Agent in the assets of the Borrower and its Subsidiaries pursuant
the Existing Credit Agreement, other than in the Collateral, shall be released.
The Administrative Agent shall take such action and execute and deliver such
documents, certificates and instruments as may be reasonably requested by
Borrower to evidence the release contemplated hereby.
[Signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.
BORROWER:
[CORPORATE SEAL] COMPX INTERNATIONAL INC., as Borrower
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
[Signature pages continued on the following page]
ADMINISTRATIVE AGENT AND LENDERS:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent
and Lender
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
[Signature pages continued on the following page]
COMPASS BANK, as Lender
By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
[Signature pages continued on the following page]
COMERICA BANK, as Lender
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
Schedule 1.1(a)
to
Credit Agreement
Lenders and Commitments
- ---------------------------------------------------- -------------------------- --------------------------------------
LENDER COMMITMENT COMMITMENT
PERCENTAGE
- ---------------------------------------------------- -------------------------- --------------------------------------
Wachovia Bank, National Association
Charlotte Plaza, CP-8
201 South College Street 50.00000% $25,000,000.00
Charlotte, North Carolina 28288-0680
Attention: Syndication Agency Services
Telephone No.: (704) 374-2698
Telecopy No.: (704) 383-0288
- ---------------------------------------------------- -------------------------- --------------------------------------
Compass Bank
8080 N. Central Expway, Suite 250
Dallas, Texas 75206 25.00000% $12,500,000
Attention: Key Coker
Telephone No.: 214-706-8044
Telecopy No.: 214-346-2746
- ---------------------------------------------------- -------------------------- --------------------------------------
Comerica Bank
U.S. Banking Department- South
4100 Spring Valley Road, Suite 400 25.00000% $12,500,000
Dallas, Texas 75244
Attention: Janet L. Wheeler
Telephone No.: 972-361-2652
Telecopy No.: 972-361-2550
- ---------------------------------------------------- -------------------------- --------------------------------------
TOTAL: 100% $50,000,000.00
- ---------------------------------------------------- -------------------------- --------------------------------------
Schedule 1.1(b)
To
Credit Agreement
Mandatory Cost Rate
1. The Mandatory Cost Rate is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank of
England and/or the United Kingdom's Financial Services Authority (the
"Financial Services Authority") (or, in either case, any other authority
which replaces all or any of its functions) or (b) the requirements of the
European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter), the Administrative Agent shall calculate, as a percentage
rate, a rate (the "Additional Cost Rate") for each Lender in accordance
with the paragraphs set out below. The Mandatory Cost Rate will be
calculated by the Administrative Agent as a weighted average of the
Lenders' Additional Cost Rates (weighted in proportion to the percentage
participation of each Lender in the relevant Loan) and will be expressed as
a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Lending Office in a
Participating Member State will be the percentage notified by that Lender
to the Administrative Agent. This percentage will be certified by that
Lender in its notice to the Administrative Agent to be its reasonable
determination of the cost (expressed as a percentage of that Lender's
participation in all Loans made from that Lending Office) of complying with
the minimum reserve requirements of the European Central Bank in respect of
loans made from that Lending Office.
4. The Additional Cost Rate for any Lender lending from a Lending Office in
the United Kingdom will be calculated by the Administrative Agent as
follows:
(a) in relation to a Loan denominated in Pounds Sterling:
AB+C(B-D)+E x 0.01
------------------ percent per annum
100-(A+C)
(b) in relation to a Loan in denominated in any Alternative Currency other
than Pounds Sterling:
E x 0.01
-------- percent per annum
300
Where:
A is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Lender is from time to time
required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
B is LIBOR for the relevant Interest Period on the relevant Loan.
C is the percentage (if any) of Eligible Liabilities which that Lender
is required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special Deposits.
E is designed to compensate Lenders for amounts payable under the Fees
Rules and is calculated by the Administrative Agent as being the
average of the most recent rates of charge supplied by any applicable
reference banks (the "Reference Banks") to the Administrative Agent
pursuant to paragraph 7 below and expressed in pounds per
(pound)1,000,000.
5. For the purposes of this Schedule 1.1(b):
(a) "Eligible Liabilities" has the meaning given to it from time to time
under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England;
(b) "Fees Rules" means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force
from time to time in respect of the payment of fees for the acceptance
of deposits;
(c) "Fee Tariffs" means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee or
zero rated fee required pursuant to the Fees Rules but taking into
account any applicable discount rate); and
(d) "Special Deposits" has the meanings given to it from time to time
under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England;
(e) "Tariff Base" has the meaning given to it in, and will be calculated
in accordance with, the Fees Rules.
6. In application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 percent will be included in the formula as
5 and not as 0.05). A negative result obtained by subtracting D from B
shall be taken as zero. The resulting figures shall be rounded to four
decimal places.
7. If requested by the Administrative Agent, each Reference Bank shall, as
soon as practicable after publication by the Financial Services Authority,
supply to the Administrative Agent the rate of charge payable by that
Reference Bank to the Financial Services Authority pursuant to the Fees
Rules in respect of the relevant financial year of the Financial Services
Authority (calculated for this purpose by that Reference Bank as being the
average of the Fee Tariffs applicable to that Reference Bank for that
financial year) and expressed in pounds per (pound)1,000,000 of the Tariff
Base of that Reference Bank.
8. Each Lender shall supply any information required by the Administrative
Agent for the purpose of calculating its Additional Cost Rate. In
particular, but without limitation, each Lender shall supply the following
information on or prior to the date on which it becomes a Lender:
(a) the jurisdiction of its Lending Office; and
(b) any other information that the Administrative Agent may reasonably
require for such purpose.
Each Lender shall promptly notify the Administrative Agent of any change to
the information provided by it pursuant to this paragraph.
9. The percentages of each Lender for the purpose of A and C above and the
rates of charge of each Reference Bank for the purpose of E above shall be
determined by the Administrative Agent based upon the information supplied
to it pursuant to paragraphs 7 and 8 above and on the assumption that,
unless a Lender notifies the Administrative Agent to the contrary, each
Lender's obligations in relation to cash ratio deposits and Special
Deposits are the same as those of a typical bank from its jurisdiction of
incorporation with a Lending Office in the same jurisdiction as its Lending
Office.
10. The Administrative Agent shall have no liability to any person if such
determination results in an Additional Cost Rate which over or under
compensates any Lender and shall be entitled to assume that the information
provided by any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8
above is true and correct in all respects.
11. The Administrative Agent shall distribute the additional amounts received
as a result of the Mandatory Cost Rate to the Lenders on the basis of the
Additional Cost Rate for each Lender based on the information provided by
each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8
above.
12. Any determination by the Administrative Agent pursuant to this Schedule
1.1(b) in relation to a formula, the Mandatory Cost Rate, an Additional
Cost Rate or any amount payable to a Lender shall, in the absence of
manifest error, be conclusive and binding on all parties.
13. The Administrative Agent may from time to time, after consultation with the
Borrower and the Lenders, determine and notify to all parties of any
amendments which are required to be made to this Schedule 1.1(b) in order
to comply with any change in law, regulation or any requirements from time
to time imposed by the Bank of England, the Financial Services Authority or
the European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall, in
the absence of manifest error, be conclusive and binding on all parties.
Schedule 1.1(c)
To
Credit Agreement
Existing Bond Documentation
[Attached hereto]
CREDIT AGREEMENT
dated as of December 23, 2005
by and among
COMPX INTERNATIONAL INC.
as Borrower,
the Lenders referred to herein,
as Lenders,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
WACHOVIA SECURITIES, INC.,
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS............................................................................................1
SECTION 1.1 Definitions..................................................................................1
SECTION 1.2 General......................................................................................3
SECTION 1.3 Effectiveness of Euro Provisions.............................................................3
SECTION 1.4 Other Definitions and Provisions.............................................................3
ARTICLE II REVOLVING CREDIT FACILITY.............................................................................3
SECTION 2.1 Revolving Credit Loans.......................................................................3
SECTION 2.2 Alternative Currency Loans...................................................................3
SECTION 2.3 Swingline Loans..............................................................................3
SECTION 2.4 Procedure for Advances of Revolving Credit Loans, Alternative Currency Loans
and Swingline Loans 3
SECTION 2.5 Repayment of Loans...........................................................................3
SECTION 2.6 Notes........................................................................................3
SECTION 2.7 Permanent Reduction of the Aggregate Commitment and the Alternative Currency Commitment......3
SECTION 2.8 Termination of Credit Facility...............................................................3
ARTICLE III LETTER OF CREDIT FACILITY............................................................................3
SECTION 3.1 L/C Commitment...............................................................................3
SECTION 3.2 Procedure for Issuance of Letters of Credit..................................................3
SECTION 3.3 Commissions and Other Charges................................................................3
SECTION 3.4 L/C Participations...........................................................................3
SECTION 3.5 Reimbursement Obligation of the Borrower.....................................................3
SECTION 3.6 Obligations Absolute.........................................................................3
SECTION 3.7 Effect of Application........................................................................3
ARTICLE IV GENERAL LOAN PROVISIONS...............................................................................3
SECTION 4.1 Interest.....................................................................................3
SECTION 4.2 Notice and Manner of Conversion or Continuation of Loans.....................................3
SECTION 4.3 Fees.........................................................................................3
SECTION 4.4 Manner of Payment............................................................................3
SECTION 4.5 Crediting of Payments and Proceeds...........................................................3
SECTION 4.6 Adjustments..................................................................................3
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption by
the Administrative Agent 3
SECTION 4.8. Redenomination of Alternative Currency Loans.................................................3
SECTION 4.9. Regulatory Limitation........................................................................3
SECTION 4.10 Changed Circumstances........................................................................3
SECTION 4.11 Indemnity....................................................................................3
SECTION 4.12 Capital Requirements.........................................................................3
SECTION 4.13 Taxes........................................................................................3
SECTION 4.14. Other Consequential Changes..................................................................3
SECTION 4.15. Replacement of Lenders.......................................................................3
SECTION 4.16. Security.....................................................................................3
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING...........................................................3
SECTION 5.1 Closing......................................................................................3
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit.......................................3
SECTION 5.3 Conditions to All Extensions of Credit.......................................................3
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BORROWER........................................................3
SECTION 6.1 Representations and Warranties...............................................................3
SECTION 6.2 Survival of Representations and Warranties, Etc..............................................3
ARTICLE VII FINANCIAL INFORMATION AND NOTICES....................................................................3
SECTION 7.1 Financial Statements and Projections.........................................................3
SECTION 7.2 Officer's Compliance Certificate.............................................................3
SECTION 7.3 Other Reports................................................................................3
SECTION 7.4 Notices......................................................................................3
SECTION 7.5 Accuracy of Information......................................................................3
ARTICLE VIII AFFIRMATIVE COVENANTS...............................................................................3
SECTION 8.1 Preservation of Corporate Existence and Related Matters......................................3
SECTION 8.2 Maintenance of Property......................................................................3
SECTION 8.3 Insurance....................................................................................3
SECTION 8.4 Accounting Methods and Financial Records.....................................................3
SECTION 8.5 Payment and Performance of Obligations.......................................................3
SECTION 8.6 Compliance With Laws and Approvals...........................................................3
SECTION 8.7 ERISA........................................................................................3
SECTION 8.8 Compliance With Agreements...................................................................3
SECTION 8.9 Visits and Inspections.......................................................................3
SECTION 8.10 Additional Subsidiaries and Additional Collateral............................................3
SECTION 8.11 Use of Proceeds..............................................................................3
SECTION 8.12 Burdensome Provisions........................................................................3
SECTION 8.13 Titles to Properties.........................................................................3
SECTION 8.14 Senior Debt Status...........................................................................3
SECTION 8.15 Further Assurances...........................................................................3
ARTICLE IX FINANCIAL COVENANTS...................................................................................3
SECTION 9.1 Leverage Ratio...............................................................................3
SECTION 9.2 Consolidated Net Worth.......................................................................3
SECTION 9.3 Interest Coverage Ratio......................................................................3
SECTION 9.4 Capital Expenditures.........................................................................3
ARTICLE X NEGATIVE COVENANTS.....................................................................................3
SECTION 10.1 Limitations on Debt..........................................................................3
SECTION 10.2 Limitations on Liens.........................................................................3
SECTION 10.3 Limitations on Loans, Advances, Investments and Acquisitions.................................3
SECTION 10.4 Limitations on Mergers and Liquidation.......................................................3
SECTION 10.5 Limitations on Sale of Assets................................................................3
SECTION 10.6 Limitations on Dividends and Distributions...................................................3
SECTION 10.7 Limitations on Exchange and Issuance of Capital Stock........................................3
SECTION 10.8 Transactions with Affiliates.................................................................3
SECTION 10.9 Certain Accounting Changes; Organizational Documents.........................................3
SECTION 10.10 Amendments; Payments and Prepayments of Subordinated Debt....................................3
SECTION 10.11 Restrictive Agreements.......................................................................3
SECTION 10.12 Nature of Business...........................................................................3
SECTION 10.13 Impairment of Security Interests.............................................................3
SECTION 10.14 Subsidiaries.................................................................................3
ARTICLE XI DEFAULT AND REMEDIES..................................................................................3
SECTION 11.1 Events of Default............................................................................3
SECTION 11.2 Remedies.....................................................................................3
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc..............................................3
SECTION 11.4 Judgment Currency............................................................................3
ARTICLE XII THE ADMINISTRATIVE AGENT.............................................................................3
SECTION 12.1 Appointment..................................................................................3
SECTION 12.2 Delegation of Duties.........................................................................3
SECTION 12.3 Exculpatory Provisions.......................................................................3
SECTION 12.4 Reliance by the Administrative Agent.........................................................3
SECTION 12.5 Notice of Default............................................................................3
SECTION 12.6 Non-Reliance on the Administrative Agent and Other Lenders...................................3
SECTION 12.7 Indemnification..............................................................................3
SECTION 12.8 The Administrative Agent in Its Individual Capacity..........................................3
SECTION 12.9 Resignation of the Administrative Agent; Successor Administrative Agent......................3
SECTION 12.10 Administrative Agent May File Proofs of Claim................................................3
ARTICLE XIII MISCELLANEOUS.......................................................................................3
SECTION 13.1 Notices......................................................................................3
SECTION 13.2 Expenses; Indemnity..........................................................................3
SECTION 13.3 Set-off......................................................................................3
SECTION 13.4 Governing Law................................................................................3
SECTION 13.5 Jurisdiction and Venue.......................................................................3
SECTION 13.6 Binding Arbitration; Waiver of Jury Trial....................................................3
SECTION 13.7 Reversal of Payments.........................................................................3
SECTION 13.8 Injunctive Relief; Punitive Damages..........................................................3
SECTION 13.9 Accounting Matters...........................................................................3
SECTION 13.10 Successors and Assigns; Participations.......................................................3
SECTION 13.11 Amendments, Waivers and Consents.............................................................3
SECTION 13.12 Performance of Duties........................................................................3
SECTION 13.13 All Powers Coupled with Interest.............................................................3
SECTION 13.14 Survival of Indemnities......................................................................3
SECTION 13.15 Titles and Captions..........................................................................3
SECTION 13.16 Severability of Provisions...................................................................3
SECTION 13.17 Counterparts.................................................................................3
SECTION 13.18 Term of Agreement............................................................................3
SECTION 13.19 Advice of Counsel............................................................................3
SECTION 13.20 No Strict Construction.......................................................................3
SECTION 13.21 Inconsistencies with Other Documents; Independent Effect of Covenants........................3
SECTION 13.22 Continuity of Contract.......................................................................3
SECTION 13.23 Release of Collateral........................................................................3
EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Swingline Note
Exhibit A-3 - Form of Alternative Currency Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Notice of Conversion/Continuation
Exhibit F - Form of Officer's Compliance Certificate
Exhibit G - Form of Assignment and Acceptance
Exhibit H - Form of Subsidiary Guaranty Agreement
Exhibit I Form of Collateral Agreement
Exhibit J - Form of Joinder Agreement
SCHEDULES
Schedule 1.1(a) - Lenders and Commitments
Schedule 1.1(b) - Mandatory Cost Rate
Schedule 1.1(c) - Existing Bond Documentation
Schedule 6.1(a) - Jurisdictions of Organization and Qualification
Schedule 6.1(b) - Subsidiaries and Capitalization
Schedule 6.1(i) - ERISA Plans
Schedule 6.1(l) - Labor and Collective Bargaining Agreements
Schedule 6.1(q) - Debt and Guaranty Obligations
Schedule 6.1(r) - Litigation
Schedule 10.2 - Existing Liens
Schedule 10.3 - Existing Loans, Advances and Investments
Schedule 10.8 - Transactions with Affiliates