EXHIBIT 10.1
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$326,849,316
CREDIT AGREEMENT
dated as of June 28, 2002,
by and among
XXXX, INC.,
and the Subsidiaries of Xxxx, Inc. party hereto,
as Borrowers
the Lenders referred to herein,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
BRANCH BANKING AND TRUST COMPANY,
as Documentation Agent
and
WACHOVIA SECURITIES, INC.
as Lead Arranger and Book Manager
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS......................................................................................6
SECTION 1.1 Definitions..................................................................................6
SECTION 1.2 General.....................................................................................20
SECTION 1.3 Other Definitions and Provisions............................................................20
ARTICLE II REVOLVING CREDIT FACILITY......................................................................20
SECTION 2.1 Revolving Credit Loans......................................................................20
SECTION 2.2 Swingline Loans.............................................................................21
SECTION 2.3 Procedure for Advances of Revolving Credit and Swingline Loans..............................22
SECTION 2.4 Repayment of Loans..........................................................................23
SECTION 2.5 Notes.......................................................................................24
SECTION 2.6 Permanent Reduction of the Aggregate Commitment.............................................24
SECTION 2.7 Termination of Credit Facility..............................................................25
ARTICLE III LETTER OF CREDIT FACILITIES...................................................................25
SECTION 3.2 Procedure for Issuance of New Letters of Credit.............................................26
SECTION 3.3 Commissions and Other Charges...............................................................27
SECTION 3.4 L/C Participations..........................................................................27
SECTION 3.5 Reimbursement Obligation of the Borrowers...................................................28
SECTION 3.6 Obligations Absolute........................................................................29
SECTION 3.7 Effect of Application.......................................................................30
ARTICLE IV GENERAL LOAN PROVISIONS........................................................................30
SECTION 4.1 Interest....................................................................................30
SECTION 4.2 Notice and Manner of Conversion or Continuation of Loans....................................32
SECTION 4.3 Fees........................................................................................32
SECTION 4.4 Manner of Payment...........................................................................33
SECTION 4.5 Crediting of Payments and Proceeds..........................................................34
SECTION 4.6 Adjustments.................................................................................34
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of Credit;
Assumption by the Administrative Agent......................................................35
SECTION 4.8 Changed Circumstances.......................................................................36
SECTION 4.9 Indemnity...................................................................................37
SECTION 4.10 Capital Requirements........................................................................38
SECTION 4.11 Taxes.......................................................................................38
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING....................................................40
SECTION 5.1 Closing.....................................................................................40
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit......................................40
SECTION 5.3 Conditions to All Extensions of Credit......................................................42
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BORROWERS................................................43
SECTION 6.1 Representations and Warranties..............................................................43
SECTION 6.2 Survival of Representations and Warranties, Etc.............................................50
ARTICLE VII FINANCIAL INFORMATION AND NOTICES.............................................................50
SECTION 7.1 Financial Statements and Projections........................................................50
SECTION 7.2 Officer's Compliance Certificate............................................................51
SECTION 7.3 Accountants' Certificate....................................................................51
SECTION 7.4 Other Reports...............................................................................51
SECTION 7.5 Notice of Litigation and Other Matters......................................................52
SECTION 7.6 Accuracy of Information.....................................................................52
ARTICLE VIII AFFIRMATIVE COVENANTS........................................................................53
SECTION 8.1 Preservation of Corporate Existence and Related Matters.....................................53
SECTION 8.2 Maintenance of Property.....................................................................53
SECTION 8.3 Insurance...................................................................................53
SECTION 8.4 Accounting Methods and Financial Records....................................................53
SECTION 8.5 Payment and Performance of Obligations......................................................53
SECTION 8.6 Compliance With Laws and Approvals..........................................................54
SECTION 8.7 Environmental Laws..........................................................................54
SECTION 8.8 Compliance with ERISA.......................................................................54
SECTION 8.9 Compliance With Agreements..................................................................54
SECTION 8.10 Visits and Inspections......................................................................54
SECTION 8.11 Additional Subsidiaries.....................................................................55
SECTION 8.12 Use of Proceeds.............................................................................55
SECTION 8.13 Further Assurances..........................................................................55
ARTICLE IX FINANCIAL COVENANTS............................................................................55
SECTION 9.1 Leverage Ratio..............................................................................55
SECTION 9.2 Fixed Charge Coverage Ratio.................................................................55
SECTION 9.3 Interest Coverage Ratio.....................................................................55
ARTICLE X NEGATIVE COVENANTS..............................................................................56
SECTION 10.1 Limitations on Debt.........................................................................56
SECTION 10.2 Limitations on Liens........................................................................57
SECTION 10.3 Limitations on Loans, Advances, Investments and Acquisitions................................57
SECTION 10.4 Limitations on Mergers and Liquidation......................................................59
SECTION 10.5 Limitations on Sale of Assets...............................................................59
SECTION 10.6 Limitations on Dividends and Distributions..................................................59
SECTION 10.7 Limitations on Exchange and Issuance of Capital Stock.......................................60
SECTION 10.8 Transactions with Affiliates................................................................60
SECTION 10.9 Certain Accounting Changes; Organizational Documents........................................60
SECTION 10.10 Amendments; Payments and Prepayments of Subordinated Debt...................................60
SECTION 10.11 Restrictive Agreements......................................................................61
SECTION 10.12 Nature of Business..........................................................................61
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ARTICLE XI DEFAULT AND REMEDIES...........................................................................61
SECTION 11.1 Events of Default...........................................................................61
SECTION 11.2 Remedies....................................................................................63
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc.............................................64
ARTICLE XII THE ADMINISTRATIVE AGENT......................................................................65
SECTION 12.1 Appointment.................................................................................65
SECTION 12.2 Delegation of Duties........................................................................65
SECTION 12.3 Exculpatory Provisions......................................................................65
SECTION 12.4 Reliance by the Administrative Agent........................................................66
SECTION 12.5 Notice of Default...........................................................................66
SECTION 12.6 Non-Reliance on the Administrative Agent and Other Lenders..................................66
SECTION 12.7 Indemnification.............................................................................67
SECTION 12.8 The Administrative Agent in Its Individual Capacity.........................................67
SECTION 12.9 Resignation of the Administrative Agent; Successor Administrative Agent.....................68
SECTION 12.10 Other Agents................................................................................68
ARTICLE XIII MISCELLANEOUS................................................................................68
SECTION 13.1 Notices.....................................................................................68
SECTION 13.2 Expenses; Indemnity.........................................................................70
SECTION 13.3 Set-off.....................................................................................71
SECTION 13.4 Governing Law...............................................................................71
SECTION 13.5 Jurisdiction and Venue......................................................................71
SECTION 13.6 Reversal of Payments........................................................................72
SECTION 13.7 Injunctive Relief; Punitive Damages.........................................................72
SECTION 13.8 Accounting Matters..........................................................................72
SECTION 13.9 Successors and Assigns; Participations......................................................72
SECTION 13.10 Amendments, Waivers and Consents............................................................75
SECTION 13.11 Performance of Duties.......................................................................76
SECTION 13.12 All Powers Coupled with Interest............................................................76
SECTION 13.13 Survival of Indemnities.....................................................................76
SECTION 13.14 Titles and Captions.........................................................................76
SECTION 13.15 Severability of Provisions..................................................................76
SECTION 13.16 Counterparts................................................................................76
SECTION 13.17 Term of Agreement...........................................................................76
SECTION 13.18 Advice of Counsel...........................................................................77
SECTION 13.19 No Strict Construction......................................................................77
SECTION 13.20 Inconsistencies with Other Documents; Independent Effect of Covenants.......................77
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EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Swingline Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Repayment
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 Joinder Agreement
SCHEDULES
Schedule 3.1(b) Additional Letters of Credit
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(f) Ongoing Tax Audits
Schedule 6.1(l) - Material Contracts
Schedule 6.1(m) - Labor and Collective Bargaining Agreements
Schedule 6.1(t) - Debt and Guaranty Obligations
Schedule 6.1(u) - Litigation
Schedule 8.3 Insurance
Schedule 10.2 - Existing Liens
Schedule 10.3 Existing Investments
Schedule 10.8 - Transactions with Affiliates
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CREDIT AGREEMENT, dated as of the 28th day of June, 2002, by and among
Xxxx, Inc., a Delaware corporation (the "Company"), the Subsidiaries of the
Company listed on the signature pages hereto and each additional Subsidiary of
the Company which hereafter becomes a Borrower pursuant to Section 8.11
(collectively, the "Subsidiary Borrowers" and together with the Company, the
"Borrowers"), the lenders who are or may become a party to this Agreement, as
Lenders and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association,
as Administrative Agent for the Lenders, BANK OF AMERICA, N.A. as Syndication
Agent and BRANCH BANKING AND TRUST COMPANY, as Documentation Agent.
STATEMENT OF PURPOSE
The Borrowers have requested, and the Lenders have agreed, to extend
certain credit facilities to the Borrowers 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:
"Additional Debt" means, with respect to any Borrower or any Subsidiary
and to the extent not included as a liability on the consolidated balance sheet
of such Borrower or Subsidiary, in accordance with GAAP, any monetary obligation
(including, without limitation, all outstanding payment, recourse, repurchase,
hold harmless, indemnity or similar obligations) with respect to any Synthetic
Lease transaction, tax retention or off-balance sheet lease transaction, asset
securitization transaction (including any accounts receivable purchase facility)
or any other monetary obligation arising with respect to any other transaction
which does not appear on the balance sheet of such Borrower or Subsidiary, but
which (i) upon the insolvency or bankruptcy of such Borrower or Subsidiary would
be characterized as debt of such Borrower or Subsidiary or (ii) is the
functional equivalent of or takes the place of borrowing.
"Adjusted Debt" means the sum of (i) Funded Debt and (ii) the product
of (x) Rental Expense and (y) eight (8).
"Administrative Agent" means Wachovia in its capacity as Administrative
Agent hereunder, and any successor thereto appointed pursuant to Section 12.9.
"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).
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"Affiliate" means, with respect to any Person, any other Person (other
than a Borrower or a Subsidiary of a 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 five percent (5%) 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'
Revolving Credit Commitments and Existing L/C Commitments hereunder, as such
amount may be 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 Three Hundred Twenty-six Million Eight Hundred Forty-nine Thousand
Three Hundred Sixteen and No/100 Dollars ($326,849,316).
"Aggregate Revolving Credit Commitment" means the aggregate amount of
the Lenders' Revolving Credit Commitments hereunder, as such amount may be
reduced or otherwise modified at any time and from time to time pursuant to the
terms hereof. On the Closing Date, the Aggregate Revolving Credit Commitment
shall be Two Hundred Million and No/100 Dollars ($200,000,000).
"Agreement" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"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).
"Application" means an application, in the form specified by the
Issuing Lender from time to time, requesting the Issuing Lender to issue a New
Letter of Credit.
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 13.9.
"Available Revolving Credit Commitment" means, as to any Lender at any
time, an amount equal to (a) such Lender's Revolving Credit 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.
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"Borrowers" shall have the meaning assigned thereto in the preamble
hereof.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina and New York, New York, are open for
the conduct of their commercial banking business, 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 that is a Business Day described in
clause (a) and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
"Calculation Date" shall have the meaning assigned thereto in Section
4.1(c).
"Capital Asset" means, with respect to the Borrowers and their
Subsidiaries, any asset that should, in accordance with GAAP, be classified and
accounted for as a capital asset on a Consolidated balance sheet of the
Borrowers and their Subsidiaries.
"Capital Lease" means any lease of any property by any of the Borrowers
or any of their 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 Borrowers and their Subsidiaries.
"Cash Collateral Account" means an account established by the Borrowers
with the Issuing Lender for the benefit of the Issuing Lender and the L/C
Participants.
"Change in Control" shall have the meaning assigned thereto in Section
11.1(i).
"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.
"Consolidated" means, when used with reference to financial statements
or financial statement items of the Borrowers and their Subsidiaries, such
statements or items on a consolidated basis in accordance with applicable
principles of consolidation under GAAP.
"Coverage Ratio" means the ratio of (a) EBITDAR to (b) Interest Expense
plus Rental Expense.
"Credit Facility" means, collectively, the Revolving Credit Facility,
the New L/C Facility and the Existing L/C Facility.
"Debt" means, with respect to the Borrowers and their Subsidiaries at
any date and without duplication, the sum of the following calculated in
accordance with GAAP: (a) all Funded Debt, (b) all Additional Debt, (c) all
obligations to pay the deferred purchase price of property or services of any
such Person (including, without limitation, all obligations under
non-competition agreements), except trade payables arising in the ordinary
course of business not more than ninety (90) days past
8
due, (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 and (h) all net payment
obligations incurred by any such Person pursuant to Hedging Agreements
"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.
"Documentation Agent" means Branch Banking and Trust Company in its
capacity as Documentation Agent hereunder.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"EBITDA" means, for any period, the sum of the following determined on
a Consolidated basis, without duplication, for the Borrowers and their
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 and franchise taxes, (ii) Interest Expense, and (iii) amortization,
depreciation, and other non-cash charges, including those related to the closing
of store locations less (c) interest income and any extraordinary gains.
"EBITDAR" means, for any period, the sum of the following determined on
a Consolidated basis, without duplication, for the Borrowers and their
Subsidiaries in accordance with GAAP: (a) EBITDA for such period plus (b) Rental
Expense.
"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 that 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
assigning Lender or (g) any other Person that has been approved in writing as an
Eligible Assignee by the Company (other than upon the occurrence and during the
continuance of any Default or Event of Default) and the Administrative Agent.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of any
Borrower or any ERISA Affiliate or
9
(b) has at any time within the preceding six (6) years been maintained for the
employees of any 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, accusations,
allegations, 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,
including, but not limited to, requirements pertaining to the manufacture,
processing, distribution, use, treatment, storage, disposal, transportation,
handling, reporting, licensing, permitting, investigation or remediation of
Hazardous Materials.
"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 any 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.
"Eurodollar Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of eurocurrency liabilities 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 Facility" means the credit facility described in the Credit
Agreement, dated May 30, 2000, between Wachovia Bank, N.A. and Xxxx, Inc.
"Existing L/C Commitment" means, as to any Lender, the obligation, if
any, of such lender to purchase and participate in the Existing Letter of Credit
in an aggregate principal or face amount at any one time outstanding not to
exceed the amount set forth in the Register.
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"Existing L/C Commitment Percentage" means, as to any Lender at any
time, the ratio of (a) the amount of the Existing L/C Commitment of such Lender,
as set forth in the Register to (b) the aggregate amount of Existing L/C
Commitments of all Lenders.
"Existing L/C Facility" means the letter of credit facility established
pursuant to the Existing Letter of Credit.
"Existing L/C Participants" means the collective reference to all the
Lenders, other than the Issuing Lender, that agree, pursuant to Section 3.1(b),
to purchase a percentage of the Existing Letter of Credit from the Issuing
Lender.
"Existing Letter of Credit" means the standby letter of credit, dated
July 1, 1998 in a face of amount of $126,849,316 issued by First Union National
Bank to support the obligations of the Company to the trustee under the Trust
Indenture, dated as of July 1, 1998 between the Company, as Borrower and First
Union National Bank, as Trustee, as amended, restated, supplemented or otherwise
modified from time to time.
"Existing Letter of Credit Documents" means the Letter of Credit and
Reimbursement Agreement dated as of July 1, 1998 between the Company and First
Union National Bank with respect to the Existing Letter of Credit and all
instruments and agreements executed in connection therewith, as amended and
restated by the Amended and Restated Letter of Credit and Reimbursement
Agreement by and among the Borrowers and the Administrative Agent of even date
with this Agreement.
"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 Revolving
Commitment Percentage of the L/C Obligations then outstanding with respect to
the New Letters of Credit and (iii) such Lender's Revolving Commitment
Percentage of the Swingline Loans then outstanding or (b) the making of any Loan
or participation in any New Letters 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. (Eastern 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 Borrowers and their
Subsidiaries ending on the Saturday closest to January 31 (whether such Saturday
occurs in January or February).
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"Fixed Charges" means, for any period, the sum of the following
determined on a Consolidated basis, without duplication, for the Borrowers and
their Subsidiaries in accordance with GAAP: (a) Interest Expense, (b) Rental
Expense and (c) cash dividends and distributions.
"Fixed Charge Coverage Ratio" means, as of the end of any fiscal
quarter of the Borrowers, the ratio of (a) EBITDAR for the period of four (4)
consecutive fiscal quarters ending on or immediately prior to such date to (b)
Fixed Charges for the period of four (4) consecutive fiscal quarters ending on
or immediately prior to such date.
"Funded Debt" means all liabilities, obligations and indebtedness of
the Borrowers for borrowed money including, but not limited to, obligations
evidenced by bonds, debentures, notes or other similar instruments and all
obligations under Capital Leases.
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the Borrowers and their Subsidiaries throughout the period indicated
and (subject to Section 13.8) consistent with the prior financial practice of
the Borrowers and their Subsidiaries.
"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 Borrowers and their
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 obligation 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 condition 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 (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
Environmental Law, (b) which 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, (c) the presence of which require investigation or remediation under
any Environmental Law or common law, (d) the discharge or emission or release of
which requires a permit or license under any Environmental Law or
12
other Governmental Approval, (e) which are deemed to constitute a nuisance or a
trespass which pose a health or safety hazard to Persons or neighboring
properties, (f) which consist of underground or aboveground storage tanks,
whether empty, filled or partially filled with any substance, or (g) which
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, 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 rates, currency values or commodity prices,
all as amended, restated, supplemented or otherwise modified from time to time.
"Interest Expense" means, with respect to the Borrowers and their
Subsidiaries for any period, the gross interest expense (including, without
limitation, interest expense attributable to Capital Leases and all net payment
obligations pursuant to Hedging Agreements) of the Borrowers and their
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 H.
"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 the New L/C
Participants and the Existing L/C Participants.
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"Lender" means each Person executing this Agreement as a Lender
(including, without limitation, the Issuing Lender and the Swingline 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 13.9.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Revolving Commitment Percentage of the
Extensions of Credit.
"Letters of Credit" means the collective reference to the New Letters
of Credit and the Existing Letter of Credit.
"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 $5,000,000 for a
period equal to the applicable Interest Period which appears on the Dow Xxxxx
Market Screen 3750 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 Xxxxx Market Screen 3750, then "LIBOR" shall be determined by
the Administrative Agent to be the arithmetic average of the rate per annum at
which deposits in Dollars in minimum amounts of at least $5,000,000 would be
offered by first class banks in the London interbank market to the
Administrative Agent 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 a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined by the Administrative Agent pursuant
to the following formula:
LIBOR Rate = LIBOR
----------------------------------
1.00-Eurodollar Reserve Percentage
"LIBOR Rate Loan" means any Loan bearing interest at a rate 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.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Swingline Side Letter, the Applications, the Existing Letter of Credit, the
Existing Letter of Credit Documents, each Joinder Agreement and each other
document, instrument, certificate and agreement executed and delivered by the
Borrowers or any of their Subsidiaries in connection with this Agreement or
otherwise referred to herein or contemplated hereby (excluding any Hedging
Agreement), all as may be amended, restated, supplemented or otherwise modified
from time to time.
14
"Loans" means the collective reference to the Revolving Credit Loans
and the Swingline Loans and "Loan" means any of such Loans.
"Material Adverse Effect" means, with respect to the Borrowers or any
of their Subsidiaries, a material adverse effect on the properties, business,
prospects, operations or condition (financial or otherwise) of any such Person
or the ability of any such Person to perform its obligations under the Loan
Documents or Material Contracts, in each case to which it is a party.
"Material Contract" means (a) any contract or other agreement, written
or oral, of any Borrower or any of its Subsidiaries involving monetary liability
of or to any such Person in an amount in excess of $10,000,000 per annum, or (b)
any other contract or agreement, written or oral, of any Borrower or any of its
Subsidiaries the failure to comply with which could reasonably be expected to
have a Material Adverse Effect.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which any 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 Income" means, with respect to the Borrowers and their
Subsidiaries, for any period of determination, the net income (or loss) of the
Borrowers and their 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 (other than a Subsidiary which
shall be subject to clause (c) below), in which any 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 such 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
except to the extent included pursuant to the foregoing clause (a), (c) the net
income (if positive) of any Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary to any Borrower
or any of its Subsidiaries of such net income (i) is not at the time permitted
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute rule or governmental regulation applicable to such
Subsidiary or (ii) would be subject to any taxes payable on such dividends or
distributions.
"Net Worth" means the amount of assets shown on the Consolidated
balance sheet of the Borrowers and their Subsidiaries (including any items which
would be treated as intangibles under GAAP, including, but not limited to
capitalized interest, debt discount and expense, goodwill, patents, trademarks,
copyrights, licenses and franchises), less all liabilities of the Borrowers and
their Subsidiaries, all computed in accordance with GAAP, applied on a
consistent basis.
"New L/C Facility" means the letter of credit facility established
pursuant to Article III hereof.
15
"New L/C Participants" means the collective reference to all the
Lenders other than the Issuing Lender.
"New L/C Sublimit" means Forty Million and No/100 Dollars
($40,000,000).
"New Letter of Credit" shall have the meaning assigned thereto in
Section 3.1(a)
"Notes" means the collective reference to the Revolving Credit Notes
and Swingline Notes and "Note" means any of such Notes.
"Notice of Account Designation" shall have the meaning assigned thereto
in Section 2.3(b).
"Notice of Borrowing" shall have the meaning assigned thereto in
Section 2.3(a).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 4.2.
"Notice of Repayment" shall have the meaning assigned thereto in
Section 2.4(c).
"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 any Borrower under any Hedging Agreement (which such Hedging Agreement
is permitted hereunder) with any Person that is 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 any 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 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
4.11(b).
"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 any
Borrower or any ERISA Affiliates or (b) has at any time
16
within the preceding six (6) years been maintained for the employees of any
Borrower or any of its current or former ERISA Affiliates.
"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.
"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 13.9(d).
"Reimbursement Obligation" means the obligation of the Borrowers to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Required Lenders" means at any date, any combination of Lenders whose
Revolving Credit Commitments and Existing L/C Commitments constitute at least
sixty-six and two-thirds percent (66 2/3%) of the Aggregate Commitment (or, if
the Revolving 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 and Existing L/C Commitments.
"Rental Expense" means payments made pursuant to all obligations of the
Borrowers and their Subsidiaries under leases of real property or personal
property, whether now existing or hereafter entered into.
"Responsible Officer" means any of the following: the chief executive
officer or chief financial officer of a Borrower or any other officer of a
Borrower reasonably acceptable to the Administrative Agent.
"Revolving Credit Commitment" means, as to any Lender, the obligation
of such Lender to make Loans to and issue or participate in New Letters of
Credit issued for the account of the Borrowers hereunder in an aggregate
principal or face amount at any time outstanding not to exceed the amount set
forth in the Register, as the same may be reduced or modified at any time or
from time to time pursuant to the terms hereof.
"Revolving Credit Commitment Percentage" means, as to any Lender at any
time, the ratio of (a) the amount of the Revolving Credit Commitment of such
Lender to (b) the Aggregate Revolving Credit Commitment.
"Revolving Credit Facility" means the revolving credit facility
established pursuant to Article II.
17
"Revolving Credit Loans" means any revolving loan made to the Borrowers
pursuant to Section 2.1, and all such revolving loans collectively as the
context requires.
"Revolving Credit Notes" means the collective reference to the
Revolving Credit Notes made by the Borrowers 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 extension 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 2.7.
"Solvent" means, as to any 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, both at fair valuation and at present fair saleable value, 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 any
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
Borrowers.
"Subsidiary Borrowers" shall have the meaning assigned thereto in the
preamble hereof.
"Swingline Facility" means the swingline facility established pursuant
to Section 2.2.
"Swingline Lender" means Wachovia in its capacity as swingline lender
hereunder.
"Swingline Loan" means any swingline loan made by the Swingline Lender
to the Borrowers pursuant to Section 2.2, and all such swingline loans
collectively as the context requires.
"Swingline Note" means the Swingline Note made by the Borrowers payable
to the order of the Swingline Lender, substantially in the form of Exhibit A-2
hereto, evidencing the Swingline
18
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 Side Letter" means the side letter dated as of the date
hereof executed by the Borrowers and the Administrative Agent detailing the
availability of Swingline Loans in connection with the Administrative Agent's
Financial Management Account program.
"Swingline Sublimit Amount" means Thirty-five Million Dollars
($35,000,000).
"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.
"Syndication Agent" means Bank of America, N.A. in its capacity as
Syndication Agent hereunder.
"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 4.11(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 any
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 any Borrower of 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 PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
"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.
19
"Wachovia" means Wachovia Bank, National Association or any successor
thereto.
"Wholly-Owned" means, with respect to a Subsidiary, that all of the
shares of capital stock or other ownership interests of such Subsidiary are,
directly or indirectly, owned or controlled by any 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 such
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 "Eastern time"
shall refer to the applicable time of day in Charlotte, North Carolina.
SECTION 1.3 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 to the
Borrowers from time to time from the Closing Date through, but not including,
the Revolving Credit Termination Date as requested by the Borrowers in
accordance with the terms of Section 2.3; provided, that (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 (i) the
Swingline Sublimit Amount and (ii) the sum of all outstanding L/C Obligations
and (b) the aggregate principal amount of all outstanding Revolving Credit Loans
from any Lender to the Borrowers shall not at any time exceed such Lender's
Revolving Credit Commitment less (i) such Lender's Revolving Credit Commitment
Percentage of outstanding L/C Obligations with respect to New Letters of Credit
and (ii) such Lender's Revolving Credit Commitment Percentage of the Swingline
Sublimit Amount. Each Revolving Credit Loan by a Lender shall be in a principal
amount equal to such Lender's Revolving
20
Credit Commitment Percentage of the aggregate principal amount of Revolving
Credit Loans requested on such occasion. Subject to the terms and conditions
hereof, the Borrowers may borrow, repay and reborrow Revolving Credit Loans
hereunder until the Revolving Credit Termination Date.
SECTION 2.2 Swingline Loans.
(a) Availability. Subject to the terms and conditions of this Agreement
and the Swingline Side Letter, the Swingline Lender agrees to make Swingline
Loans to the Borrowers from time to time from the Closing Date through, but not
including, the Swingline Termination Date; provided, that 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 and L/C Obligations and
(b) the Swingline Sublimit Amount.
(b) Payment of Principal and Interest. Principal and interest on
Swingline Loans deemed requested pursuant to the Swingline Side Letter shall be
paid pursuant to the terms and conditions of the Swingline Side Letter 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 Swingline Side Letter, the principal of the
Swingline Loans shall be paid in full, together with accrued interest thereon,
on the earlier to occur of (i) demand for payment by the Swingline Lender or
(ii) the Swingline Termination Date.
(c) Refunding.
(i) Upon the occurrence and during the continuance of an Event
of Default, 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 Revolving Credit 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
Revolving Credit Commitment Percentage of Revolving Credit Loans as required to
repay Swingline Loans outstanding to the Swingline Lender upon demand by the
Swingline Lender upon the occurrence and during the continuance of an Event of
Default but in no event later than 2:00 p.m. (Eastern time) on the next
succeeding Business Day after such demand is made. No Lender's obligation to
fund its respective Revolving Credit Commitment Percentage of a Swingline Loan
shall be affected by any other Lender's failure to fund its Revolving Credit
Commitment Percentage of a Swingline Loan, nor shall any Lender's Revolving
Credit Commitment Percentage be increased as a result of any such failure of any
other Lender to fund its Revolving Credit Commitment Percentage of a Swingline
Loan.
(ii) The Borrowers 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 repay in full the outstanding Swingline Loans
requested or required to be refunded. In addition, the Borrowers hereby
authorize the Administrative Agent to charge any account maintained by the
Borrowers with the Swingline Lender (up to the amount available therein) in
order to immediately
21
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 Borrowers 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 Revolving Credit Commitment
Percentages (unless the amounts so recovered by or on behalf of the Borrowers
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 2.2 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 Swingline Loans pursuant to this
Section 2.2, one of the events described in Section 11.1(j) or (k) shall have
occurred, each Lender will, on the date the applicable Revolving Credit Loan
would have been made, purchase an undivided participating interest in the
Swingline Loan to be refunded in an amount equal to its Revolving Credit
Commitment Percentage of the aggregate amount of such Swingline Loan. 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).
SECTION 2.3 Procedure for Advances of Revolving Credit and Swingline
Loans.
(a) Requests for Borrowing. With the exception of Swingline Loans
deemed requested pursuant to the Swingline Side Letter, the Borrowers 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 11:00
a.m. (Eastern time) (i) on the same Business Day as each Base Rate Loan and each
Swingline Loan and (ii) at least three (3) Business Days before each LIBOR Rate
Loan, of its intention to borrow, specifying (A) the date of such borrowing,
which shall be a Business Day, (B) the amount of such borrowing, which shall be,
(x) 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, (y) with respect to LIBOR Rate Loans in an aggregate principal amount
of $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (z) with
respect to Swingline Loans (other than Swingline Loans deemed requested pursuant
to the Swingline Side Letter) in an aggregate principal amount of $100,000 or a
whole multiple of $100,000 in excess thereof, (C) whether such Loan is to be a
Revolving Credit Loan or Swingline Loan, (D) in the case of a Revolving Credit
Loan whether the Loans are to be LIBOR Rate Loans or Base Rate Loans, and (E) in
the case of a LIBOR Rate Loan, the duration of the Interest Period
22
applicable thereto. A Notice of Borrowing received after 11:00 a.m. (Eastern
time) shall be deemed received on the next Business Day. The Administrative
Agent shall promptly notify the Lenders of each Notice of Borrowing.
(b) Disbursement of Revolving Credit and Swingline Loans. Not later
than 2:00 p.m. (Eastern time) on the proposed borrowing date, (i) each Lender
will make available to the Administrative Agent, for the account of the
Borrowers, at the office of the Administrative Agent in funds immediately
available to the Administrative Agent, such Lender's Revolving Credit Commitment
Percentage of the Revolving Credit Loans to be made on such borrowing date and
(ii) the Swingline Lender will make available to the Administrative Agent, for
the account of the Borrowers, at the office of the Administrative Agent in funds
immediately available to the Administrative Agent, the Swingline Loans (other
than Swingline Loans deemed requested pursuant to the Swingline Side Letter) to
be made on such borrowing date. The Borrowers hereby irrevocably authorize the
Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section 2.3 in immediately available funds by crediting or
wiring such proceeds to the deposit account of the Company identified in the
most recent notice substantially in the form of Exhibit C hereto (a "Notice of
Account Designation") delivered by the Borrowers to the Administrative Agent or
as may be otherwise agreed upon by the Borrowers and the Administrative Agent
from time to time. 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 2.3 to the extent that any Lender has
not made available to the Administrative Agent its Revolving Credit Commitment
Percentage of such Loan. Revolving Credit Loans to be made for the purpose of
refunding Swingline Loans shall be made by the Lenders as provided in Section
2.2(c).
SECTION 2.4 Repayment of Loans.
(a) Repayment on Termination Date. The Borrowers hereby agree to repay
the outstanding principal amount of (i) all Revolving Credit Loans in full on
the Revolving Credit Termination Date, and (ii) all Swingline Loans in
accordance with Section 2.2, together, in each case, with all accrued but unpaid
interest thereon.
(b) Mandatory Repayments. If at any time (i) the outstanding principal
amount of all Revolving Credit Loans plus the sum of all outstanding Swingline
Loans and L/C Obligations with respect to New Letters of Credit exceeds the
Aggregate Revolving Credit Commitment or (ii) the outstanding principal amount
of all Revolving Credit Loans plus the sum of all outstanding Swingline Loans
and L/C Obligations exceeds the Aggregate Commitment, the Borrowers agree to
repay immediately upon notice from the Administrative Agent, by payment to the
Administrative Agent for the account of the Lenders of an amount equal to such
excess with each such repayment applied first to the outstanding principal
amount of outstanding Swingline Loans, second to the principal amount of
outstanding Revolving Credit Loans, third, with respect to any New Letters of
Credit then outstanding, a payment of cash collateral into the Cash Collateral
Account for the benefit of the New L/C Participants in an amount equal to the
aggregate then undrawn and unexpired amount of such New Letters of Credit and
fourth with respect to the amount of the Existing Letter of Credit then
outstanding, a payment of cash collateral into the Cash Collateral Account for
the benefit of the Existing L/C Participants in an amount equal to the then
undrawn and
23
unexpired amount of such Existing Letter of Credit, (all such cash collateral to
be applied in accordance with Section 11.2(b) and Section 11.2(c)).
(c) Optional Repayments. The Borrowers may at any time and from time to
time repay the Loans, in whole or in part, upon at least three (3) Business
Days' irrevocable notice to the Administrative Agent with respect to LIBOR Rate
Loans and one (1) Business Day irrevocable notice with respect to Base Rate
Loans and Swingline Loans, substantially in the form attached hereto as Exhibit
D (a "Notice of Repayment") specifying the date and amount of repayment and
whether the repayment is of LIBOR Rate Loans, Base Rate Loans, Swingline 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, except with respect to any repayment of Swingline Loans. 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 of $3,000,000 or a whole multiple of $1,000,000 in excess
thereof with respect to Base Rate Loans (other than Swingline Loans), $5,000,000
or a whole multiple of $1,000,000 in excess thereof with respect to LIBOR Rate
Loans and $100,000 or a whole multiple of $100,000 in excess thereof with
respect to Swingline Loans. Each such repayment shall be accompanied by any
amount required to be paid pursuant to Section 4.9 hereof.
(d) Limitation on Repayment of LIBOR Rate Loans. The Borrowers 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 4.9 hereof.
(e) Hedging Agreements. No repayment or prepayment pursuant to this
Section 2.4 shall affect any Borrower's obligations under any Hedging Agreement.
SECTION 2.5 Notes.
(a) Revolving Credit Notes. Except as otherwise provided in Section
13.9 (a)-(e), each Lender's Revolving Credit Loans and the obligation of the
Borrowers to repay such Revolving Credit Loans shall be evidenced by a separate
Revolving Credit Note executed by the Borrowers payable to the order of such
Lender.
(b) Swingline Notes. The Swingline Loans and the obligation of the
Borrowers to repay such Swingline Loans shall be evidenced by a Swingline Note
executed by the Borrowers payable to the order of the Swingline Lender.
SECTION 2.6 Permanent Reduction of the Aggregate Commitment.
(a) Voluntary Reduction. The Borrowers 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 or (ii) portions of the Revolving Credit
Commitment, in an aggregate principal amount of not less than $3,000,000 or any
whole multiple of $1,000,000 in excess thereof. The amount of each partial
permanent reduction shall be applied pro rata to reduce the remaining mandatory
reduction amounts
24
required under Section 2.6(b), and such reduction shall permanently reduce the
Lenders' Revolving Credit Commitments to make Loans and issue or participate in
New Letters of Credit pro rata in accordance with their respective Revolving
Credit Commitment Percentages.
(b) Corresponding Payment. Each permanent reduction permitted pursuant
to this Section 2.6 shall be accompanied by a payment of principal sufficient to
reduce the aggregate outstanding Revolving Credit Loans, Swingline Loans and L/C
Obligations, as applicable, after such reduction to the Aggregate Commitment or
Revolving Credit Commitment as so reduced and if the Aggregate Commitment as so
reduced is less than the aggregate amount of all outstanding Letters of Credit,
or if the Revolving Credit Commitment, as so reduced is less than the aggregate
amount of all outstanding New Letters of Credit, the Borrowers shall be required
to deposit cash collateral in the Cash Collateral Account in an amount equal to
(i) in the case of a reduction in the Aggregate Commitment, the aggregate then
undrawn and unexpired amount of such Letters of Credit and (ii) in the case of a
reduction in the Revolving Credit Commitment, the aggregate then undrawn and
unexpired amount of such New Letters of Credit. Such cash collateral shall be
applied in accordance with Section 11.2(b) and Section 11.2(c). Any reduction of
the Aggregate Commitment to zero shall be accompanied by payment of all
outstanding Revolving Credit 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 Revolving Credit Commitments and the
Revolving Credit Facility. Such cash collateral shall be applied in accordance
with Section 11.2(b) and Section 11.2(c). If the reduction of the Aggregate
Commitment requires the repayment of any LIBOR Rate Loan, such repayment shall
be accompanied by any amount required to be paid pursuant to Section 4.9 hereof.
SECTION 2.7 Termination of Revolving Credit Facility.
The Revolving Credit Facility shall terminate on the earliest of (a)
July 31, 2005, (b) the date of termination by the Borrowers pursuant to Section
2.6 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 FACILITIES
SECTION 3.1 L/C Commitments.
(a) 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 and trade letters of credit ("New Letters of
Credit") for the account of the Borrowers on any Business Day from the Closing
Date through but not including the fifth (5th) Business Day prior to 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 New Letter of Credit if, after giving effect to such issuance, (a) the
L/C Obligations under New Letters of Credit would exceed the New L/C Sublimit or
(b) the Available Revolving Credit Commitment of any Lender would be less than
zero. Each New Letter of Credit shall (i) be denominated in Dollars in a minimum
amount of $15,000, (ii) be a standby letter of credit or trade letter of credit
issued to support obligations of the Borrowers or any of their Subsidiaries,
contingent or otherwise, incurred in the ordinary course
25
of business, (iii) expire on a date satisfactory to the Issuing Lender, which
date shall be no later than the earlier of (a) one (1) year after its date of
issuance and (b) the fifth (5th) Business Day 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.
(b) Subject to the terms and conditions hereof, the Issuing
Lender, in reliance on the agreements of the other Lenders, if any, set forth in
Section 3.4(b), agrees to maintain the Existing Letter of Credit for the account
of the Company from the Closing Date through and including July 23, 2003;
provided, that, so long as (i) no default or event of default shall have
occurred under the Existing Letter of Credit and (ii) no Default or Event of
Default has occurred under this Agreement, the Issuing Lender, may in its sole
discretion, renew the Existing Letter of Credit for a period ending July 31,
2005. The Existing Letter of Credit shall (i) be denominated in Dollars in the
initial amount of $126,849,316 and (ii) be a standby letter of credit issued to
support obligations of the Company to the trustee under the Trust Indenture,
dated as of July 1, 1998 between the Company, as Borrower and First Union
National Bank, as Trustee. The Existing Letter of Credit and the letters of
credit described on Schedule 3.1(b) shall be deemed to be Letters of Credit
issued under and pursuant to the terms of this Agreement.
(c) The Issuing Lender shall not at any time be obligated to
issue or maintain any Letter of Credit hereunder if such issuance or maintenance
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",
"maintain" and derivations thereof with respect to the 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 New Letters of Credit. The
Borrowers may from time to time request that the Issuing Lender issue a New
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 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(a) and Article V hereof, promptly issue the New Letter of Credit
requested thereby (but in no event shall the Issuing Lender be required to issue
any New Letter of Credit earlier than three (3) 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 New
Letter of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Lender and the Borrowers. The Issuing Lender shall promptly furnish to
the Company a copy of such New 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 New Letter of Credit and the amount of such Lender's participation therein.
26
SECTION 3.3 Commissions and Other Charges.
(a) The Borrowers shall pay to the Administrative Agent, for the
account of the Issuing Lender and the New L/C Participants, a letter of credit
commission with respect to each New Letter of Credit in an amount equal to the
average outstanding amount of such New 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 New L/C Participants all commissions
received pursuant to this Section 3.3(a) in accordance with their respective
Revolving Credit Commitment Percentages.
(b) The Borrowers shall pay to the Administrative Agent, for the
account of the Issuing Lender and the Existing L/C Participants, a letter of
credit commission with respect to the Existing Letter of Credit in an amount
equal to the average outstanding amount of such Letter of Credit multiplied by
(i) .375% per annum for the period from the Closing Date through July 23, 2003
and (ii) .60% per annum thereafter. 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 Existing
L/C Participants all commissions received pursuant to this Section 3.3(b) in
accordance with their respective Existing L/C Commitment Percentages.
(c) In addition to the foregoing fees and commissions, the Borrowers
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 New L/C Participant, and, to induce the Issuing Lender to issue New Letters
of Credit hereunder, each New 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 New L/C Participant's own account
and risk an undivided interest equal to such New L/C Participant's Revolving
Credit Commitment Percentage in the Issuing Lender's obligations and rights
under and in respect of each New Letter of Credit issued hereunder and the
amount of each draft paid by the Issuing Lender thereunder. Each New L/C
Participant unconditionally and irrevocably agrees with the Issuing Lender that,
if a draft is paid under any New Letter of Credit for which the Issuing Lender
is not reimbursed in full by the Borrowers through a Revolving Credit Loan or
otherwise in accordance with the terms of this Agreement, such New 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 New L/C
Participant's Revolving Credit Commitment Percentage of the amount of such
draft, or any part thereof, which is not so reimbursed.
(b) The Issuing Lender irrevocably agrees to grant and hereby grants to
each Existing L/C Participant, and each Existing L/C Participant irrevocably
agrees to accept and purchase and
27
hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such Existing L/C Participant's own account
and risk an undivided interest equal to the amount set forth in the Register
representing such Existing L/C Participant's Existing L/C Commitment Percentage
in the Issuing Lender's obligations and rights under and in respect of the
Existing Letter of Credit and the amount of each draft paid by the Issuing
Lender thereunder. Each Existing L/C Participant unconditionally and irrevocably
agrees with the Issuing Lender that, if a draft is paid under the Existing
Letter of Credit for which the Issuing Lender is not reimbursed in full by the
Company, such Existing 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 Existing L/C Participant's Existing L/C Commitment Percentage of
the amount of such draft, or any part thereof, which is not so reimbursed.
(c) 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) or (b) 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(c) 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(c), if the L/C
Participants receive notice that any such payment is due (A) prior to 1:00 p.m.
(Eastern time) on any Business Day, such payment shall be due that Business Day,
and (B) after 1:00 p.m. (Eastern time) on any Business Day, such payment shall
be due on the following Business Day.
(d) 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
Revolving Credit Commitment Percentage or Existing Commitment Percentage, as
applicable, 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 a Borrower or otherwise, or any payment of interest on account thereof),
the Issuing Lender will distribute to such L/C Participant its 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 Borrowers. In the event of
any drawing under any Letter of Credit, the Borrowers agree to reimburse the
Issuing Lender in same day funds (in the case of a New Letter of Credit, either
with the proceeds of a Revolving Credit Loan as provided for in this Section 3.5
or with funds from other sources, and in the case of the Existing Letter of
Credit, with funds from other sources) on each date on which the Issuing Lender
notifies the Company of the date and amount of a draft paid under any Letter of
Credit. The amount
28
of the Reimbursement Obligation shall equal 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. With respect to the reimbursement of a New
Letter of Credit, unless the Borrowers shall immediately notify the Issuing
Lender that the Borrowers intend to reimburse the Issuing Lender for such
drawing from other sources or funds, the Borrowers 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 New 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
this Agreement. If the Borrowers elect, or in the case of the Existing Letter of
Credit, are required, to pay the amount of such drawing with funds from other
sources and fail to reimburse the Issuing Lender as provided above, the
unreimbursed amount of such drawing (i) with respect to New Letters of Credit
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) and (ii) with respect
to the Existing Letter of Credit, shall bear interest at the rates set forth in
the Existing Letter of Credit Documents, in each case, until payment in full.
SECTION 3.6 Obligations Absolute. The Borrowers' 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 Borrowers may have or
have had against the Issuing Lender or any beneficiary of a Letter of Credit or
any other Person. The Borrowers also agree that the Issuing Lender and the L/C
Participants shall not be responsible for, and the Borrowers' 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 any 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 any 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 Borrowers agree 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 each Borrower and shall not result in
any liability of the Issuing Lender or any L/C Participant to any Borrower. The
responsibility of the Issuing Lender to the Borrowers 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.
29
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 Borrowers, (i) Revolving Credit Loans shall bear
interest at (A) the Base Rate plus the Applicable Margin or (B) the LIBOR Rate
plus the Applicable Margin (provided that the LIBOR Rate shall not be available
until three (3) Business Days after the Closing Date) and (ii) any Swingline
Loan shall bear interest at the rate mutually agreed upon by the Swingline
Lender and the Borrowers. The Borrowers shall select the rate of interest and
Interest Period, if any, applicable to any Loan at the time a Notice of
Borrowing is given or at the time a Notice of Conversion/Continuation is given
pursuant to Section 4.2. Any Loan or any portion thereof as to which the
Borrowers have not duly specified an interest rate as provided herein shall be
deemed a Base Rate Loan.
(b) Interest Periods. In connection with each LIBOR Rate Loan, the
Borrowers, 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) or three (3)
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 Maturity Date; and
30
(v) there shall be no more than ten (10) 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 Borrowers are required to provide an Officer's Compliance Certificate for
the most recently ended fiscal quarter of the Borrowers; provided, however, that
(a) the initial Applicable Margin shall be based on Pricing Level II (as shown
below) and shall remain at Pricing Level II until the first Calculation Date
occurring after the Closing Date and, thereafter the Pricing Level shall be
determined by reference to the Coverage Ratio as of the last day of the most
recently ended fiscal quarter of the Borrowers preceding the applicable
Calculation Date, and (b) if the Borrowers fail to provide the Officer's
Compliance Certificate as required by Section 7.2 for the most recently ended
fiscal quarter of the Borrowers preceding the applicable Calculation Date, the
Applicable Margin from such Calculation Date shall be based on Pricing Level IV
(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 Coverage Ratio as of the last day of the most recently ended
fiscal quarter of the Borrowers 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 Coverage Ratio LIBOR Base Rate
--------------------------------------------------------------------------------
I Greater than 3.75 to 1.00 .875% 0%
--------------------------------------------------------------------------------
II Greater than 3.00 to 1.00, 1.000% 0%
but less than or equal to
3.75 to 1.00
--------------------------------------------------------------------------------
III Greater than 2.25 to 1.00, 1.250% 0%
but less than or equal to
3.00 to 1.00
--------------------------------------------------------------------------------
IV Less than or equal to 2.25 1.500% 0%
to 1.00
--------------------------------------------------------------------------------
(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 an Event of Default, (i) the Borrowers shall no
longer have the option to request LIBOR Rate Loans or Swingline Loans, (ii) all
outstanding LIBOR Rate Loans shall bear interest at a rate per annum of 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. Interest
shall continue to accrue on the Notes after the filing by or against any
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.
31
(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 June 30, 2002; and interest on each LIBOR Rate Loan shall be payable
on the last day of each Interest Period applicable thereto. 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 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 Borrowers 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 Borrowers 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 Borrowers under Applicable Law.
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 Borrowers 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 $5,000,000 or any whole multiple of $1,000,000 in excess thereof
into one or more LIBOR Rate Loans and (b) upon the expiration of any Interest
Period, (i) convert all or any part of its outstanding LIBOR Rate Loans 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) or (ii) continue such
LIBOR Rate Loans as LIBOR Rate Loans. Whenever the Borrowers desire to convert
or continue Loans as provided above, the Borrowers shall give the Administrative
Agent irrevocable prior written notice in the form attached as Exhibit E (a
"Notice of Conversion/Continuation") not later than 11:00 a.m. (Eastern time)
three (3) Business Days 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 effective
date of such conversion or continuation (which shall be a Business Day), (C) the
principal amount of such Loans to be converted or continued, and (D) 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 Borrowers shall
pay to the Administrative Agent, for the account of the Lenders, a
non-refundable commitment fee at a rate
32
per annum equal to the applicable rate set forth below on the average daily
unused portion of the Revolving Credit Commitment. The applicable commitment fee
rate shall be based upon the table set forth below and 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 II (as shown below)
and shall remain at Pricing Level II until the first Calculation Date occurring
after the Closing Date and, thereafter the Pricing Level shall be determined by
reference to the Coverage Ratio as of the last day of the most recently ended
fiscal quarter of the Borrowers preceding the applicable Calculation Date, and
(b) if the Borrowers fail to provide the Officer's Compliance Certificate as
required by Section 7.2 for the most recently ended fiscal quarter of the
Borrowers preceding the applicable Calculation Date, the commitment fee from
such Calculation Date shall be based on Pricing Level IV (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 Coverage
Ratio as of the last day of the most recently ended fiscal quarter of the
Borrowers preceding such Calculation Date. The commitment fee rate shall be
effective from one Calculation Date until the next Calculation Date. Any
adjustment in the commitment fee rate shall be applicable to all Extensions of
Credit then existing or subsequently made or issued. The commitment fee shall be
payable in arrears on the last Business Day of each calendar quarter during the
term of this Agreement commencing September 30, 2002, and on the Revolving
Credit Facility termination date set forth in Section 2.7. Notwithstanding
anything to the contrary contained herein, for purposes of calculating the
commitment fee payable at any time to any Lender other than the Swingline
Lender, amounts outstanding under the Swingline Facility shall not be included
in the calculation of the unused portion of the Revolving Credit Commitment.
--------------------------------------------------------------------------------
Pricing Level Coverage Ratio Commitment Fee
--------------------------------------------------------------------------------
I Greater than 3.75 to 1.00 0.25%
--------------------------------------------------------------------------------
II Greater than 3.00 to 1.00, but less than 0.25%
or equal to 3.75 to 1.00
--------------------------------------------------------------------------------
III Greater than 2.25 to 1.00, but less than 0.375%
or equal to 3.00 to 1.00
--------------------------------------------------------------------------------
IV Less than or equal to 2.25 to 1.00 0.375%
--------------------------------------------------------------------------------
(b) Administrative Agent's and Other Fees. To compensate the
Administrative Agent for structuring and syndicating the Loans and for its
obligations hereunder, the Borrowers agree to pay to the Administrative Agent,
for its account, the fees set forth in the separate fee letter agreement
executed by the Borrowers and the Administrative Agent dated April 2, 2002.
SECTION 4.4 Manner of Payment. Each payment by the Borrowers on account
of the principal of or interest on the Loans or of any fee, commission or other
amounts (including the Reimbursement Obligation) payable to the Lenders under
this Agreement or any Note shall be made
33
not later than 1:00 p.m. (Eastern 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 pro rata in accordance with their respective
Revolving Credit Commitment Percentages in the case of Extensions of Credit or
Existing L/C Commitment Percentages in the case of the Existing Letter of
Credit, in Dollars, 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. (Eastern 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. (Eastern time) shall be deemed to have been made on the
next succeeding Business Day for all purposes. 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 Revolving Credit
Commitment Percentage, with respect to Extensions of Credit and in accordance
with such Lender's Existing L/C Commitment Percentage with respect to the
Existing Letter of Credit 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 and any amount payable
to any Lender under Sections 4.8, 4.9, 4.10, 4.11 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
Borrowers 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 Borrowers hereunder and under the other Loan Documents,
(b) then to all indemnity obligations then due and payable by the Borrowers
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, (f)
then to the principal amount outstanding under the Swingline Note to the
Swingline Lender, (g) then to accrued and unpaid interest on the Revolving
Credit Notes, accrued and unpaid interest on the Reimbursement Obligation (pro
rata in accordance with all such amounts due), (h) then to the principal amount
of the Revolving Credit Notes and Reimbursement Obligations (pro rata in
accordance with all such amounts due), (i) then to any Hedging Obligations
(including any termination payments and any accrued and unpaid interest thereon)
and (j) then to the Cash Collateral Account described in Section 11.2(b) and
Section 11.2(c) hereof to the extent of any L/C Obligations under New Letters of
Credit and the Existing Letter of Credit 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
34
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 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 such
portion of such other Lender's participating interest in the Existing Letter 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 Borrowers
agree that each Lender so purchasing a portion of another Lender's Extensions of
Credit or so purchasing a portion of such other Lender's participating interest
in the Existing Letter 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 Sections 2.3(b) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrowers 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 the product of
(a) the amount not made available by such Lender in accordance with the terms
hereof, times (b) the daily average Federal Funds Rate during such period as
determined by the Administrative Agent, times (c) 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. 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 Revolving
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
Borrowers. The failure of any Lender to make available its Revolving Commitment
Percentage of any Loan requested by the Borrowers shall not relieve it or any
other Lender of its obligation, if any, hereunder to make its Revolving
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
Revolving Commitment Percentage of such Loan available on the borrowing date.
Notwithstanding anything set forth herein to the contrary, any Lender that fails
to make
35
available its Revolving 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 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. If with respect to
any Interest Period the Administrative Agent or any Lender (after consultation
with the Administrative Agent) shall determine that, by reason of circumstances
affecting the foreign exchange and interbank markets generally, deposits in
eurodollars, in the applicable amounts are not being quoted via the Dow Xxxxx
Market Screen 3750 or offered to the Administrative Agent or such Lender for
such Interest Period, then the Administrative Agent shall forthwith give notice
thereof to the Company. Thereafter, until the Administrative Agent notifies the
Company that such circumstances no longer exist, the obligation of the Lenders
to make LIBOR Rate Loans and the right of the Borrowers to convert any Loan to
or continue any Loan as a LIBOR Rate Loan shall be suspended, and the Borrowers
shall repay in full (or cause to be repaid in full) the then outstanding
principal amount of each such LIBOR Rate Loan together with accrued interest
thereon, on the last day of the then current Interest Period applicable to such
LIBOR Rate Loan or convert the then outstanding principal amount of each such
LIBOR Rate Loan to a Base Rate Loan as of the last day of such Interest Period.
(b) Laws Affecting LIBOR Rate 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, such Lender shall promptly give notice thereof to
the Administrative Agent and the Administrative Agent shall promptly give notice
to the Company and the other Lenders. Thereafter, until the Administrative Agent
notifies the Company that such circumstances no longer exist, (i) the
obligations of the Lenders to make LIBOR Rate Loans and the right of the
Borrowers to convert any Loan or continue any Loan as a LIBOR Rate Loan shall be
suspended and thereafter the Borrowers may select only Base Rate Loans
hereunder, and (ii) if any of the Lenders may not lawfully continue to maintain
a LIBOR Rate Loan to the end of the then current Interest Period applicable
thereto as a LIBOR Rate Loan, the applicable LIBOR Rate Loan shall immediately
be converted to a Base Rate Loan for the remainder of such Interest Period.
(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:
36
(i) shall (except as provided in Section 4.11(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 Borrowers shall not be obligated to pay any amounts pursuant to this
Section 4.8(c)(i) to the extent that such amounts are duplicative of any amounts
paid by the Borrowers pursuant to Section 4.11; 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 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
Letter of Credit or Application, then such Lender shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify the
Company of such fact and demand compensation therefor and, within fifteen (15)
days after such notice by the Administrative Agent, the Borrowers 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 Company of any event of which it has knowledge which will
entitle such Lender to compensation pursuant to this Section 4.8(c); provided,
that the Administrative Agent shall incur no liability whatsoever to the Lenders
or the Borrowers in the event it fails to do so. The amount of such compensation
shall be determined, in the applicable Lender's sole discretion, based upon the
assumption that such Lender funded its Revolving 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 Company through the Administrative Agent and shall be conclusively presumed
to be correct save for manifest error.
SECTION 4.9 Indemnity. The Borrowers hereby indemnify each of the
Lenders against any loss or expense 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 LIBOR Rate Loan (a) as a consequence of any failure
by the Borrowers to make any payment when due of any amount due hereunder in
connection with a LIBOR Rate Loan, (b) due to any failure of the Borrowers 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 on a date other than the last
day of the Interest Period therefor. The amount of
37
such loss or expense shall be determined, in the applicable Lender's sole
discretion, based upon the assumption that such Lender funded its Revolving
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 Company through the Administrative Agent and shall be
conclusively presumed to be correct save for manifest error.
SECTION 4.10 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 Borrowers 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 Company 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 4.11 Taxes.
(a) Payments Free and Clear. Except as otherwise provided in Section
4.11(e), any and all payments by any 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 Borrowers 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 4.11(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 4.11) 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 Borrowers shall make such deductions or withholdings, (C) the
Borrowers shall pay the full amount deducted to the relevant taxing authority or
other authority in accordance with Applicable Law, and (D) the Borrowers 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 4.11(d).
38
(b) Stamp and Other Taxes. In addition, the Borrowers 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, or 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 4.11(e), the
Borrowers 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
4.11) paid by such Lender or the Administrative Agent (as the case may be) and
any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, 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.
(d) Evidence of Payment. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the Borrowers shall furnish to the
Administrative Agent and the applicable Lender, 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 Company, 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 Company, 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 Company, 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 Company 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 Borrowers
39
shall not be required to pay additional amounts to any Lender or the
Administrative Agent under Section 4.11 or Section 4.8(c), (i) if such Lender or
the Administrative Agent fails to comply with the requirements of this Section
4.11(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 any Borrower hereunder, the agreements and obligations of the Borrowers
contained in this Section 4.11 shall survive the payment in full of the
Obligations and the termination of the Commitments.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1 Closing. The closing shall take place at the offices of
Kennedy, Covington, Xxxxxxx & Xxxxxxx, L.L.P. at 10:00 a.m. on ______________,
2002, or on such other place, 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. This Agreement, the Revolving Credit
Notes, the Swingline Note, together with any other applicable Loan Documents,
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 Borrowers shall have
delivered original counterparts thereof to the Administrative Agent.
(b) Closing Certificates; etc.
(i) Officer's Certificate of the Borrowers. The
Administrative Agent shall have received a certificate from a Responsible
Officer, in form and substance satisfactory to the Administrative Agent, to the
effect that all representations and warranties of the Borrowers contained in
this Agreement and the other Loan Documents are true, correct and complete; that
the Borrowers 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 Borrowers have satisfied each of the
closing conditions.
(ii) Certificate of Secretary of the Borrowers. The
Administrative Agent shall have received a certificate of the secretary or
assistant secretary of each Borrower certifying as to the incumbency and
genuineness of the signature of each officer of each Borrower 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 such Borrower
and all amendments thereto,
40
certified as of a recent date by the appropriate Governmental Authority in its
jurisdiction of incorporation, (B) the bylaws of such Borrower as in effect on
the date of such certifications, (C) resolutions duly adopted by the Board of
Directors of such Borrower 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 long-form certificates as of a recent date of the good
standing of each Borrower under the laws of its jurisdiction of organization
and, to the extent requested by the Administrative Agent, each other
jurisdiction where such Borrower is qualified to do business and a certificate
of the relevant taxing authorities of such jurisdictions 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 Borrowers addressed to the
Administrative Agent and the Lenders with respect to the Borrowers, 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
4.11(e) hereof.
(c) Consents; Defaults.
(i) Governmental and Third Party Approvals. The Borrowers
shall have obtained all necessary 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.
(ii) No Injunction, Etc. No action, 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 of the transactions
contemplated hereby or thereby, or which, in the Administrative Agent's sole
discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement and such other Loan Documents.
(iii) No Event of Default. No Default or Event of Default
shall have occurred and be continuing.
(d) Financial Matters.
(i) Financial Statements. The Administrative Agent shall have
received the audited Consolidated financial statements of the Borrowers and
their Subsidiaries as of February 2, 2002.
41
(ii) Financial Condition Certificate. The Borrowers 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 Borrowers and each of their Subsidiaries are
each Solvent, (B) attached thereto are calculations evidencing compliance on a
pro forma basis with the covenants contained in Article IX hereof, (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 Borrowers and their Subsidiaries and (D)
attached thereto is a calculation of the Applicable Margin pursuant to Section
4.1(c).
(iii) Payment at Closing; Fee Letters. The Borrowers 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, 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.
(e) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing, as applicable, from the Borrowers in accordance
with Section 2.3(a), and a Notice of Account Designation 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 and all collateral security therefor shall be released,
and the Administrative Agent shall have received a pay-off letter in form and
substance satisfactory to it evidencing such repayment, termination,
reconveyance and release.
(iii) Existing Letter of Credit. The Administrative Agent
shall have received evidence to its satisfaction that there are no outstanding
unpaid draws or any existing default or event of default under the Existing
Letter of Credit or any Existing Letter of Credit Documents.
(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), participate in the Existing Letter 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, continuation, conversion, issuance or extension date:
42
(a) Continuation of Representations and Warranties. The
representations and warranties contained in Article VI shall be true and correct
on and as of such borrowing, continuation, conversion, 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, continuation or conversion
date with respect to such Loan or after giving effect to the Loans to be made,
continued or converted 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.
(c) Notices. The Administrative Agent shall have received a
Notice of Borrowing or Notice of Conversion/Continuation, as applicable, from
the Borrowers in accordance with Section 2.3(a).
(d) 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 BORROWERS
SECTION 6.1 Representations and Warranties. To induce the
Administrative Agent and Lenders to enter into this Agreement and to induce the
Lenders to make Extensions of Credit and/or participate in the Existing Letter
of Credit, the Borrowers hereby represent and warrant 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 Borrowers and their
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, has the power and
authority to own its properties and to carry on its business as now being and
hereafter proposed to be conducted and is duly qualified and authorized to do
business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification and authorization. The
jurisdictions in which the Borrowers and their 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 any Borrower as of the Closing Date
is listed on Schedule 6.1(b). As of the Closing Date, the capitalization of the
Borrowers and their 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 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 each Borrower and the
number of shares owned by each as of the
43
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, which are convertible into
Debt or which are exchangeable for or otherwise provide for or permit the
issuance of capital stock of the Borrowers or their Subsidiaries in an amount
which in the aggregate for any Borrower or Subsidiary exceeds twenty (20%)
percent of the issued and outstanding capital stock of such Borrower or
Subsidiary.
(c) Authorization of Agreement, Loan Documents and Borrowing. Each of
the Borrowers and their Subsidiaries has the right, power and authority and has
taken all necessary corporate and other 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 each Borrower and each of its Subsidiaries party
thereto, and each such document constitutes the legal, valid and binding
obligation of each 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 Borrowers and their
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 Governmental Approval
or violate any Applicable Law relating to the Borrowers or any of their
Subsidiaries, (ii) conflict with, result in a breach of or constitute a default
under the articles of incorporation, bylaws or other organizational documents of
any Borrower or any of its Subsidiaries or any 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 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 consent or authorization of, filing
with, or other act in respect of, an arbitrator or Governmental Authority and no
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. Except in each case
where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect, each of the Borrowers 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 the best of its
knowledge, threatened attack by direct or collateral proceeding, (ii) is in
compliance with each Governmental Approval applicable to it and in compliance
with all other Applicable Laws relating to it or any of its respective
properties and (iii) 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.
44
(f) Tax Returns and Payments. Each of the Borrowers and its
Subsidiaries has duly filed or caused to be filed all federal, state, local and
other tax returns required by Applicable Law to be filed, and has paid, or made
adequate provision for the payment of, all federal, state, local and other
taxes, assessments and governmental charges or levies upon it and its property,
income, profits and assets which are due and payable. Such returns accurately
reflect in all material respects all liability for taxes of the Borrowers and
their Subsidiaries for the periods covered thereby. Except as set forth on
Schedule 6.1(f), there is no ongoing audit or examination or, to the knowledge
of any Borrower, other investigation by any Governmental Authority of the tax
liability of any Borrower and its Subsidiaries. No Governmental Authority has
asserted any Lien or other claim against any Borrower or any Subsidiary thereof
with respect to unpaid taxes which has not been discharged or resolved. The
charges, accruals and reserves on the books of the Borrowers and any of their
Subsidiaries in respect of federal, state, local and other taxes for all Fiscal
Years and portions thereof since the organization of each Borrower and any of
its Subsidiaries are in the judgment of the Borrowers adequate, and such
Borrower does not anticipate any additional taxes or assessments for any of such
years.
(g) Intellectual Property Matters. Each of the Borrowers 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 xxxx, service xxxx rights,
trade names, trade name rights, copyrights and rights with respect to the
foregoing which are required to conduct its business. 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 neither the Borrowers nor any
Subsidiaries thereof are liable to any Person for infringement under Applicable
Law with respect to any such rights as a result of its business operations.
(h) Environmental Matters.
(i) To the best of each Borrower's knowledge, the properties
owned, leased or operated by any Borrower and its Subsidiaries now or in the
past do not contain, and have not previously contained, any Hazardous Materials
in amounts or concentrations which (A) constitute or constituted a violation of
applicable Environmental Laws or (B) could give rise to liability under
applicable Environmental Laws;
(ii) To the best of each Borrower's knowledge, each Borrower,
each Subsidiary and such properties and all operations conducted in connection
therewith are in compliance, and have been in compliance, with all applicable
Environmental Laws, and there is no contamination at, under or about such
properties or such operations which could interfere with the continued operation
of such properties or impair the fair saleable value thereof;
(iii) No Borrower or any Subsidiary thereof has received any
notice of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters, Hazardous Materials, or compliance
with Environmental Laws, nor does any Borrower or any Subsidiary thereof have
knowledge or reason to believe that any such notice will be received or is being
threatened;
45
(iv) To the best of each Borrower's knowledge, Hazardous
Materials have not been transported or disposed of to or from the properties
owned, leased or operated by any Borrower and its Subsidiaries in violation of,
or in a manner or to a location which could give rise to liability under,
Environmental Laws, nor have any Hazardous Materials been generated, treated,
stored or disposed of at, on or under any of such properties in violation of, or
in a manner that could give rise to liability under, any applicable
Environmental Laws;
(v) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of any Borrower, threatened, under any
Environmental Law to which any Borrower or any Subsidiary thereof is or will be
named as a potentially responsible party with respect to such properties or
operations conducted in connection therewith, nor are there any consent decrees
or other decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to any Borrower, any Subsidiary or such
properties or such operations; and
(vi) To the best of each Borrower's knowledge, there has been
no release or threat of release of Hazardous Materials at or from properties
owned, leased or operated by any Borrower or any Subsidiary, now or in the past,
in violation of or in amounts or in a manner that could give rise to liability
under Environmental Laws.
(i) ERISA.
(i) As of the Closing Date, no Borrower or 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 Borrower and each ERISA Affiliate is in material
compliance with all applicable provisions of ERISA and the regulations and
published interpretations thereunder with respect to all Employee Benefit Plans
except for any required amendments for which the remedial amendment period as
defined in Section 401(b) of the Code has not yet expired and except where a
failure to so comply could not reasonably be expected to have a Material Adverse
Effect. 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. No liability has been
incurred by any Borrower or any ERISA Affiliate which remains unsatisfied for
any taxes or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan except for a liability that could not reasonably be expected
to have a Material Adverse Effect;
(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 any
Borrower or any ERISA Affiliate failed to make any contributions or to pay any
amounts due and owing as required by Section 412 of the Code, Section 302 of
ERISA or the terms of any Pension
46
Plan prior to the due dates of such contributions under Section 412 of the Code
or Section 302 of ERISA, 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;
(iv) Except where the failure of any of the following
representations to be correct in all material respects could not reasonably be
expected to have a Material Adverse Effect, no Borrower or any ERISA Affiliate
has: (A) engaged in a nonexempt prohibited transaction described in Section 406
of the ERISA or Section 4975 of the Code, (B) incurred any liability to the PBGC
which remains outstanding other than the payment of premiums and there are no
premium payments which are due and unpaid, (C) failed to make a required
contribution or payment to a Multiemployer Plan, or (D) failed to make a
required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably
expected to occur; and
(vi) Except where the failure of any of the following
representations to be correct in all material respects could not reasonably be
expected to have a Material Adverse Effect, no proceeding, claim (other than a
benefits claim in the ordinary course of business), lawsuit and/or investigation
is existing or, to the best knowledge of any Borrower after due inquiry,
threatened concerning or involving any (A) employee welfare benefit plan (as
defined in Section 3(1) of ERISA) currently maintained or contributed to by any
Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
(j) Margin Stock. No Borrower or 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. No Borrower or 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 no Borrower or any Subsidiary thereof is, or after giving effect to
the transactions contemplated by this Agreement 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) Material Contracts. Schedule 6.1(l) sets forth a complete and
accurate list of all Material Contracts of any Borrower and its Subsidiaries in
effect as of the Closing Date not listed on any other Schedule hereto; other
than as set forth in Schedule 6.1(l), each such Material Contract is, and after
giving effect to the consummation of the transactions contemplated by the Loan
Documents will be, in full force and effect in accordance with the terms
thereof. No Borrower or
47
any Subsidiary (nor, to the knowledge of any Borrower, any other party thereto)
is in breach of or in default under any Material Contract in any material
respect.
(m) Employee Relations. Each Borrower and its Subsidiaries has a stable
work force in place and 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(m). No
Borrower knows of any pending, threatened or contemplated strikes, work stoppage
or other collective labor disputes involving its employees or those of its
Subsidiaries.
(n) Burdensome Provisions. No Borrower or any Subsidiary thereof is a
party to any indenture, agreement, lease or other instrument, or subject to any
corporate or partnership restriction, Governmental Approval or Applicable Law
which is so unusual or burdensome as in the foreseeable future could be
reasonably expected to have a Material Adverse Effect. The Borrowers and their
Subsidiaries do not presently anticipate that future expenditures needed to meet
the provisions of any statutes, orders, rules or regulations of a Governmental
Authority will be so burdensome as to have a Material Adverse Effect. No
Subsidiary is 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 its parent
Borrower or any Subsidiary or to transfer any of its assets or properties to its
parent Borrower or any other Subsidiary in each case other than existing under
or by reason of the Loan Documents or Applicable Law.
(o) Financial Statements. The audited Consolidated balance sheet of the
Borrowers and their Subsidiaries as of February 2, 2002 and the related audited
statements of income and retained earnings and cash flows for the Fiscal Year
then ended, 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 assets, liabilities and financial position of the Borrowers and their
Subsidiaries as at such dates, and the results of the operations and changes of
financial position 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 Borrowers and their 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.
(p) No Material Adverse Change. Since February 2, 2002, there has been
no material adverse change in the properties, business, operations, prospects,
or condition (financial or otherwise) of the Borrowers and their Subsidiaries
and no event has occurred or condition arisen that could reasonably be expected
to have a Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to the
transactions contemplated by this Agreement, each Borrower and each of its
Subsidiaries will be Solvent.
(r) Titles to Properties. Each Borrower and its Subsidiaries has 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, including, but not limited to, those reflected on the
balance sheets of the Borrowers and their Subsidiaries delivered pursuant to
Section 6.1(o),
48
except those which have been disposed of by such Borrower or its Subsidiaries
subsequent to such date which dispositions have been in the ordinary course of
business or as otherwise expressly permitted hereunder.
(s) Liens. None of the properties and assets of any 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 any 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 no Borrower or 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.
(t) Debt and Guaranty Obligations. Schedule 6.1(t) is a complete and
correct listing of all Debt and Guaranty Obligations of each Borrower and its
Subsidiaries as of the Closing Date in excess of $1,000,000. Each Borrower and
its Subsidiaries have performed and are in compliance with all of the terms of
such Debt and Guaranty Obligations and all instruments and agreements relating
thereto, and no default or event of default, or event or condition which with
notice or lapse of time or both would constitute such a default or event of
default on the part of any Borrower or any of its Subsidiaries exists with
respect to any such Debt or Guaranty Obligation.
(u) Litigation. Except for matters existing on the Closing Date and set
forth on Schedule 6.1(u), there are no actions, suits or proceedings pending
nor, to the knowledge of any Borrower, threatened against or in any other way
relating adversely to or affecting any 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.
(v) 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 any Borrower or any Subsidiary thereof under any Material
Contract or judgment, decree or order to which such Borrower or its Subsidiaries
is a party or by which such Borrower or its Subsidiaries or any of their
respective properties may be bound or which would require such Borrower or its
Subsidiaries to make any payment thereunder prior to the scheduled maturity date
therefor.
(w) Senior Debt Status. The Obligations of the Borrowers and each of
their Subsidiaries under this Agreement and each of the other Loan Documents
ranks and shall continue to rank at least senior in priority of payment to all
Subordinated Debt of each such Person and is designated as "Senior Indebtedness"
under all instruments and documents, now or in the future, relating to all
Subordinated Debt and all senior unsecured Debt of such Person.
(x) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of each Borrower or
any Subsidiary thereof (other than financial projections, which shall be subject
to the standard set forth in Section 7.1(c)) and furnished to the Lenders were,
at the time the same were so furnished, complete and correct in all material
respects to the extent necessary to give the recipient a true and accurate
knowledge of the
49
subject matter. No document furnished or written statement made to the
Administrative Agent or the Lenders by any Borrower or any Subsidiary thereof in
connection with the negotiation, preparation or execution of this Agreement or
any of the Loan Documents contains or will contain any untrue statement of a
fact material to the creditworthiness of each Borrower or its Subsidiaries or
omits or will omit to state a fact necessary in order to make the statements
contained therein not misleading. No Borrower is aware of any facts which it has
not disclosed in writing to the Administrative Agent having a Material Adverse
Effect, or insofar as such Borrower can now foresee, which could reasonably be
expected to have 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 13.10 hereof, the Company will furnish or cause to be furnished to
the Administrative Agent at the Administrative Agent's Office at the address set
forth in Section 13.1 and to the Lenders at their respective addresses as set
forth in the Register and/or provided to the Administrative Agent from time to
time, 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 sixty (60) days after the end of each of the first three (3) fiscal
quarters of each Fiscal Year, an unaudited Consolidated balance sheet of the
Borrowers and their Subsidiaries as of the close of such fiscal quarter and an
unaudited Consolidated statement of income for the fiscal quarter then ended,
together with statements of retained earnings and cash flows for the portion of
the Fiscal Year then ended, including the notes thereto, all in reasonable
detail setting forth in comparative form the corresponding figures as of the end
of and for the corresponding period in the preceding Fiscal Year and prepared by
the Company in accordance with GAAP and, if applicable, containing disclosure of
the effect on the financial position or results of operations of any change in
the application of accounting principles and practices during the period, and
certified by the chief financial officer of the Company to present fairly in all
material respects the financial condition of the Borrowers and their
Subsidiaries on a Consolidated basis as of their respective dates and the
results of operations of
50
the Borrowers and their Subsidiaries for the respective periods then ended,
subject to normal year end adjustments.
(b) Annual Financial Statements. As soon as practicable and in any
event within ninety (90) days after the end of each Fiscal Year, an audited
Consolidated balance sheet of the Borrowers and their Subsidiaries as of the
close of such Fiscal Year and audited Consolidated statements of income,
retained earnings and cash flows for the Fiscal Year then ended, including the
notes thereto, all in reasonable detail setting forth in comparative form the
corresponding figures as of the end of and for the preceding Fiscal Year and
prepared in accordance with GAAP and, if applicable, containing disclosure of
the effect on the financial position or results of operations of any change in
the application of accounting principles and practices during the year, to be
accompanied by a report thereon by an independent certified public accounting
firm, reasonably acceptable to the Administrative Agent, that is not qualified
with respect to scope limitations imposed by any Borrower or any of its
Subsidiaries or with respect to accounting principles followed by any Borrower
or any of its Subsidiaries not in accordance with GAAP.
(c) Annual Business Plan and Financial Projections. As soon as
practicable and in any event prior to the end of the first fiscal quarter of
each Fiscal Year, a business plan of the Borrowers and their Subsidiaries for
the ensuing four (4) fiscal quarters, such plan to be prepared in accordance
with GAAP and to include, on a quarterly basis, the following: a quarterly
operating and capital budget, a projected income statement, statement of cash
flows and balance sheet and a report containing management's discussion and
analysis of such projections, accompanied by a certificate from the chief
financial officer of the Company to the effect that, to the best of such
officer's knowledge, such projections are good faith estimates (utilizing
reasonable assumptions) of the financial condition and operations of the
Borrowers and their Subsidiaries for such four (4) quarter period.
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 or the treasurer of the Company in the form of Exhibit F
attached hereto (an "Officer's Compliance Certificate").
SECTION 7.3 Accountants' Certificate. At each time financial statements
are delivered pursuant to Section 7.1(b), a certificate of the independent
public accountants certifying such financial statements addressed to the
Administrative Agent for the benefit of the Lenders stating that in making the
examination necessary for the certification of such financial statements, they
obtained no knowledge of any Default or Event of Default or, if such is not the
case, specifying such Default or Event of Default and its nature and period of
existence.
SECTION 7.4 Other Reports
Such information regarding the operations, business affairs and
financial condition of any Borrower or any of its Subsidiaries as the
Administrative Agent or any Lender may reasonably request.
51
SECTION 7.5 Notice of Litigation and Other Matters. Prompt (but in no
event later than ten (10) days after an officer of any Borrower obtains
knowledge thereof) telephonic and written notice of:
(a) the commencement of all proceedings and investigations by or before
any Governmental Authority and all actions and proceedings in any court or
before any arbitrator against or involving any Borrower or any Subsidiary
thereof or any of their respective properties, assets or businesses which
involves an amount in excess of $5,000,000 individually or $10,000,000 in the
aggregate;
(b) any notice of any violation received by any Borrower or any
Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws involving an amount in
excess of $5,000,000 individually or in the aggregate;
(c) any labor controversy that has resulted in, or threatens to result
in, a strike or other work action against any Borrower or any Subsidiary thereof
at any material business location of any Borrower or any Subsidiary;
(d) any attachment, judgment, lien, levy or order exceeding $1,000,000
that may be assessed against any Borrower or any Subsidiary thereof;
(e) (i) any Default or Event of Default, (ii) the occurrence or
existence of any event or circumstance that foreseeably will become a Default or
Event of Default or (iii) any event which constitutes or which with the passage
of time or giving of notice or both would constitute a default or event of
default under any Material Contract to which any Borrower or any of its
Subsidiaries is a party or by which any Borrower or any Subsidiary thereof or
any of their respective properties may be bound if such default or event of
default shall have a Material Adverse Effect on any Borrower or any Subsidiary;
(f) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (along with a copy thereof), (ii) all notices received by any
Borrower or any ERISA Affiliate of the PBGC's intent to terminate any Pension
Plan or to have a trustee appointed to administer any Pension Plan, (iii) all
notices received by any Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal liability
pursuant to Section 4202 of ERISA and (iv) any Borrower obtaining knowledge or
reason to know that any Borrower or any ERISA Affiliate has filed or intends to
file a notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA; and
(g) any event which makes any of the representations set forth in
Section 6.1 inaccurate in any material respect.
SECTION 7.6 Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of any Borrower
to the Administrative Agent or any Lender whether pursuant to this Article VII
or any other provision of
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this Agreement shall be, at the time the same is so furnished, in compliance
with the representations and warranties set forth in Section 6.1(x).
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 13.10, each 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 conduct of its business, and qualify and remain qualified as a
foreign corporation and authorized to do business in each jurisdiction where the
nature and scope of its activities require it to so qualify under Applicable
Law.
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 matter.
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 and as may be required by
Applicable Law, and on the Closing Date and from time to time thereafter deliver
to the Administrative Agent upon its request a detailed list of the insurance
then in effect, stating the names of the insurance companies, the amounts and
rates of the insurance, the dates of the expiration thereof and the properties
and risks covered thereby. As of the Closing Date, the Borrowers maintain the
insurance described on Schedule 8.3.
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 any 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.
53
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 the
conduct of its business.
SECTION 8.7 Environmental Laws. In addition to and without limiting the
generality of Section 8.6, (a) comply with, and ensure such compliance in all
material respects by all tenants and subtenants with all applicable
Environmental Laws and obtain and comply with and maintain, and ensure that all
tenants and subtenants, if any, obtain and comply with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, (b) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws, and promptly comply with all lawful orders
and directives of any Governmental Authority regarding Environmental Laws,
unless such lawful orders and directives are being contested in good faith and
by appropriate proceedings and for which adequate reserves are maintained to the
extent required by GAAP, 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 claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the presence
of Hazardous Materials, or the violation of, noncompliance with or liability
under any Environmental Laws applicable to the operations of any Borrower or any
such Subsidiary, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable
attorney's and consultant's fees, investigation and laboratory fees, response
costs, court costs and litigation expenses, except to the extent that any of the
foregoing directly result from the gross negligence or willful misconduct of the
party seeking indemnification therefor.
SECTION 8.8 Compliance with ERISA. In addition to and without limiting
the generality of Section 8.6, (a) except where the failure to so comply could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (i) comply with all material applicable provisions of ERISA and
the regulations and published interpretations thereunder with respect to all
Employee Benefit Plans, (ii) not take any action or fail to take action the
result of which could be a liability to the PBGC or to a Multiemployer Plan,
(iii) not participate in any prohibited transaction that could result in any
civil penalty under ERISA or tax under the Code and (iv) operate each Employee
Benefit Plan in such a manner that will not incur any tax liability under
Section 4980B of the Code or any liability to any qualified beneficiary as
defined in Section 4980B of the Code and (b) 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 8.9 Compliance With Agreements. Comply in all material respects
with each term, condition and provision of all material leases, agreements and
other instruments entered into in the conduct of its business including, without
limitation, any Material Contract.
SECTION 8.10 Visits and Inspections. Permit representatives of the
Administrative Agent or any Lender, from time to time, during normal business
hours, to visit and inspect its
54
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 8.11 Additional Subsidiaries. Within ten (10) days after any
Subsidiary of any Borrower, which is created or acquired after the Closing Date,
engages in any business operations or owns assets with a fair market value in
excess of $5,000,000, cause to be executed and delivered to the Administrative
Agent (a) a duly executed Joinder Agreement and (b) favorable legal opinions
addressed to the Administrative Agent and Lenders in form and substance
satisfactory thereto with respect to such Joinder Agreement and such other
documents and closing certificates as may be requested by the Administrative
Agent.
SECTION 8.12 Use of Proceeds. Use the proceeds of the Extensions of
Credit (a) to finance acquisitions permitted by Section 10.3 hereof, (b) to
refinance the Existing Facility, and (c) for working capital and general
corporate requirements of the Borrowers and their Subsidiaries, including the
payment of certain fees and expenses incurred in connection with the
transactions.
SECTION 8.13 Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Administrative
Agent or 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 13.10 hereof, the Borrowers and their Subsidiaries on a
Consolidated basis will not:
SECTION 9.1 Leverage Ratio: As of any fiscal quarter end, permit the
ratio of (a) Adjusted Debt on such date to (b) EBITDAR for the period of four
(4) consecutive fiscal quarters ending on or immediately prior to such date to
be greater than 4.25 to 1.0.
SECTION 9.2 Fixed Charge Coverage Ratio: As of the end of any fiscal
quarter, permit the Fixed Charge Coverage Ratio to be less than 2.00 to 1.0.
SECTION 9.3 Minimum Net Worth: At any time, permit Net Worth to be less
than the sum of (a) ninety percent (90%) of Net Worth as of the Fiscal Year
ending February 2, 2002 plus (b) fifty percent (50%) of Net Income (to the
extent positive) for each Fiscal Year ending after the Closing Date.
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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 13.10, each of the Borrowers has not and will 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 or Additional Debt except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant
to Section 10.1(b));
(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 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(t), and the renewal,
refinancing, extension and replacement (but not the increase in the aggregate
principal amount) thereof;
(d) Debt of the Borrowers and their Subsidiaries incurred in connection
with Capitalized Leases in an aggregate amount not to exceed $75,000,000 on any
date of determination;
(e) purchase money Debt of the Borrowers and their Subsidiaries in an
aggregate amount not to exceed $25,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the
benefit of the Administrative Agent and the Lenders;
(g) Guaranty Obligations with respect to Debt permitted pursuant to
subsections (a) through (e) of this Section 10.1;
(h) payment of costs and expenses, including , without limitation,
maintenance costs and service fees incurred in connection with the outsourcing
of Borrowers' telecommunications network not to exceed $10,000,000 in the
aggregate during any Fiscal Year; and
(i) Additional Debt in an aggregate amount not to exceed $50,000,000 on
any date of determination.
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 any Borrower to make any
payment to such Borrower or any of its Subsidiaries (in the
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form of dividends, intercompany advances or otherwise) for the purpose of
enabling such 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
Environmental Laws) not yet due or as to which the period of grace (not to
exceed thirty (30) days), if any, related thereto has not expired or which are
being contested in good faith and by appropriate proceedings and for which
adequate reserves are maintained to the extent required by GAAP;
(b) the claims of materialmen, contractors, mechanics, carriers,
warehousemen, processors or landlords 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, detract from the value of such property or impair the use thereof
in the ordinary conduct of 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; and
(g) Liens securing Debt permitted under Sections 10.1(d) and (e);
provided that (i) such Liens shall be created substantially simultaneously with
the acquisition or lease of the related asset, (ii) such Liens do not at any
time encumber any property other than the property financed by such Debt, (iii)
the amount of Debt secured thereby is not increased and (iv) the principal
amount of 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.
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
57
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 in (i) Subsidiaries existing on the Closing Date, (ii)
in Subsidiaries formed or acquired after the Closing Date so long as the
Borrowers and their Subsidiaries comply with the applicable provisions of
Section 8.11 and (iii) the other loans, advances and investments described on
Schedule 10.3 existing on the Closing Date;
(b) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency thereof
maturing within one hundred twenty (120) 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 a rating of "A-2" or
better from Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. or a rating of "P2" or better from Xxxxx'x 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, or (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;
(c) investments in the form of the acquisition of all or substantially
all of the business or a line of business (whether by the acquisition of capital
stock, assets or any combination thereof) of any other Person, if (i) no Default
or Event of Default then exists or would be created thereby, (ii) the Borrowers
have delivered to the Administrative Agent a certificate of a Responsible
Officer (on behalf of the Borrowers) demonstrating pro forma compliance with the
covenants contained in Article IX both before and after giving effect to such
acquisition, and (iii) the aggregate consideration (including cash and non-cash
consideration, whether in the form of earned-out payments or other deferred
payments) and any assumption of liabilities does not exceed $25,000,000 for any
single acquisition or an aggregate of $100,000,000 for all acquisitions from the
date hereof through the Revolving Credit Termination Date, without the prior
written consent of the Required Lenders;
(d) Hedging Agreements permitted pursuant to Section 10.1;
(e) purchases of assets in the ordinary course of business;
(f) investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary to prevent loss; and
58
(g) other investments not exceeding $20,000,000 in the aggregate in any
Fiscal Year of the Borrowers.
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) any Subsidiary of any Borrower may merge with the Company, such
Borrower or any other Subsidiary of such Borrower; provided that in any merger
involving the Company or a Borrower, the Company or such Borrower shall be the
surviving entity;
(b) any Wholly-Owned Subsidiary of any Borrower may merge into the
Person such Wholly-Owned Subsidiary was formed to acquire in connection with an
acquisition permitted by Section 10.3(c); and
(c) any Wholly-Owned Subsidiary of any Borrower may wind-up into such
Borrower or any other Wholly-Owned Subsidiary of such 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 obsolete assets no longer used or usable in the
business of any Borrower or any of its Subsidiaries;
(c) the transfer of assets to any Borrower or any Wholly-Owned
Subsidiary of any 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; and
(f) any other sale of any asset not otherwise permitted by this Section
10.5; provided that the aggregate amount of all sales permitted by this
paragraph (f) does not exceed five percent (5%) of such Borrower's Net Worth in
any Fiscal Year.
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:
59
(a) any Borrower or any Subsidiary may pay dividends in shares of its
own capital stock;
(b) any Subsidiary may pay cash dividends to a Borrower; and
(c) any Borrower or any Subsidiary may pay any other dividends or
distributions not otherwise permitted by this Section 10.6; provided that the
aggregate of all dividends and distributions permitted by this paragraph (c)
during any Fiscal Year shall not exceed five percent (5%) of the Net Worth of
such Borrower or such Subsidiary for such Fiscal Year.
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, 10.7, and loans and advances not exceeding $10,000,000
in the aggregate at any one time outstanding to officers and employees of
Borrowers for the purchase of a residence in connection with the relocation of
such officers and employees and those transactions existing on the Closing Date
and identified on Schedule 10.8 directly or indirectly (a) make any loan or
advance to, or purchase or assume any note or other obligation to or from, any
of its officers, directors, shareholders or other Affiliates, or to or from any
member of the immediate family of any of its officers, directors, shareholders
or other Affiliates, or subcontract any operations to any of its Affiliates or
(b) enter into, or be a party to, any other transaction not described in clause
(a) above with any of its Affiliates, except pursuant to the reasonable
requirements of its business and upon fair and reasonable terms that are fully
disclosed to and approved in writing by the Required Lenders prior to the
consummation thereof and 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)
Change their Fiscal Year end, or make any change in their 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 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
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.
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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) Enter into or permit to exist any agreement which impairs or limits
the ability of any Subsidiary of a Borrower to pay dividends to such Borrower.
SECTION 10.12 Nature of Business. Substantively alter the character or
conduct of the business conducted by any Borrower and its Subsidiaries as of the
Closing Date.
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 Borrowers 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 Borrowers shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan, Note or Reimbursement Obligation or the payment of any
other Obligation.
(c) Misrepresentation. Any representation or warranty made or deemed to
be made by the Borrowers or any of their 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 Borrowers shall
default in the performance or observance of any covenant or agreement contained
in Sections 7.1, 7.2 or 7.5(e)(i) or Articles IX or X of this Agreement.
(e) Default in Performance of Other Covenants and Conditions. The
Borrowers or any of their Subsidiaries 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 (other than as specifically provided for
otherwise in this Section 11.1) and such default shall continue for a period of
thirty (30) days after written notice thereof has been given to the Company by
the Administrative Agent.
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(f) Hedging Agreement. The Borrowers 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 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 Borrowers or any of their 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 $10,000,000 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 $10,000,000 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) Other Cross-Defaults. The occurrence of any default or event of
default under any of the Existing Letter of Credit Documents.
(i) Change in Control. Any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended)
other than Xxxx Xxxx and/or members of the Belk family (and any trusts of which
he and/or any of such family members are beneficiaries and any other Persons of
which he or any of such family members is the beneficial equityholder) shall
obtain ownership or control in one or more series of transactions of more than
fifty-one percent (51%) of the common stock or fifty-one percent (51%) of the
voting power of the Company entitled to vote in the election of members of the
board of directors of the Company or there shall have occurred under any
indenture or other instrument evidencing any Debt in excess of $1,000,000 any
"change in control" (as defined in such indenture or other evidence of Debt)
obligating any Borrower to repurchase, redeem or repay all or any part of the
Debt or capital stock provided for therein (any such event, a "Change in
Control").
(j) Voluntary Bankruptcy Proceeding. Any 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.
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(k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against any Borrower or any 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 any Borrower or any 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 ninety
(90) 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.
(l) Failure of Agreements. Any provision of this Agreement or any
provision of any other Loan Document shall for any reason cease to be valid and
binding on any Borrower or Subsidiary party thereto or any such Person shall so
state in writing, other than in accordance with the express terms hereof or
thereof.
(m) Termination Event. The occurrence of any of the following events:
(i) any 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, any Borrower or any ERISA Affiliate is required to pay as
contributions thereto, (ii) an accumulated funding deficiency in excess of
$2,000,000 occurs or exists, whether or not waived, with respect to any Pension
Plan, (iii) a Termination Event or (iv) any 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
$2,000,000.
(n) Judgment. A judgment or order for the payment of money which causes
the aggregate amount of all such judgments to exceed $1,000,000 in any Fiscal
Year shall be entered against any Borrower or any of its Subsidiaries by any
court and such judgment or order shall continue without discharge or stay for a
period of thirty (30) days.
(o) Environmental. Any one or more Environmental Claims shall have been
asserted against any Borrower or any of its Subsidiaries; the Borrower or
Subsidiary 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 Company:
(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
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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 Borrowers to request
borrowings or Letters of Credit thereunder; provided, that upon the occurrence
of an Event of Default specified in Section 11.1(j) or (k), 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) New Letters of Credit. With respect to all New Letters of Credit
with respect to which presentment for honor shall not have occurred at the time
of an acceleration pursuant to Section 11.2(a), the Borrowers shall at such time
deposit in the Cash Collateral Account an amount equal to the aggregate then
undrawn and unexpired amount of such New Letters of Credit. Amounts held in the
Cash Collateral Account shall be applied by the Administrative Agent to the
payment of drafts drawn under the New Letters of Credit and the unused portion
thereof after all such New Letters of Credit shall have expired or shall have
been fully drawn upon, if any, shall be applied to repay the other Obligations
on a pro rata basis. After all such New Letters of Credit shall expire or shall
have been fully drawn upon, the Reimbursement Obligation shall have been
satisfied with respect to all Letters of Credit and all other Obligations shall
have been paid in full, the balance, if any, in the Cash Collateral Account
shall be returned to the Company.
(c) Existing Letter of Credit. In the event presentment for honor shall
not have occurred with respect to the Existing Letter of Credit at the time of
an acceleration pursuant to Section 11.2(a), the Borrowers shall at such time
deposit in the Cash Collateral Account an amount equal to the aggregate then
undrawn and unexpired amount of the Existing Letter of Credit. Amounts held in
the Cash Collateral Account with respect to the Existing Letter of Credit shall
be applied by the Administrative Agent to the payment of drafts drawn under the
Existing Letter of Credit and the unused portion thereof after the Existing
Letter 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 the Existing
Letter of Credit shall expire or shall have been fully drawn upon, the
Reimbursement Obligations with respect to all Letters of Credit shall have been
satisfied and all other Obligations shall have been paid in full, the balance,
if any, in the Cash Collateral Account shall be returned to the Company.
(d) 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 Borrowers' 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
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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 any 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.
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 any 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
65
sufficiency of this Agreement or the other Loan Documents or for any failure of
any 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 Borrowers or any of their 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
Borrowers), 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 13.9. 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 Company 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 Borrowers or any of their
Subsidiaries, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender
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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 Borrowers and their 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 Borrowers and their 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
Borrowers or any of their 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 Borrowers and without limiting the obligation of the Borrowers to do so),
ratably according to the respective amounts of their Revolving Commitment
Percentages and Existing L/C 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 its capacity as such 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 Borrowers 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.
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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 Company. 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 Other Agents. None of the Lenders identified on the
facing page, in the introductory paragraph or on the signature pages to this
Agreement as a Syndication Agent or Documentation Agent shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Lenders as such. Without limiting the foregoing,
none of the Lenders so identified shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any of the Lenders so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.
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: (i)
delivered by hand delivery (ii) sent via electronic mail, provided that the
party sending such electronic mail does not receive notice that such electronic
mail has failed to reach the Person or Persons to whom such notice is to be
given, (iii) posting on an internet web page accessible by the Person or Persons
to whom the notice is to be given, immediately following notice of such posting
by electronic mail, (iv) telecopy, (v) recognized overnight courier service or
(vi) certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (a) on the date of delivery if delivered by hand or
sent by electronic mail as provided in (ii) above, posting on an internet web
page as provided in (iii) above, telecopy, (b) on the next Business Day if sent
by recognized overnight courier service and (c) on the third Business Day
following the date sent by certified mail, return
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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 Borrowers: Xxxx, Inc.
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Chief Financial Officer
Telephone No.: (000) 000-0000, Ext. 3070
Telecopy No.: (000) 000-0000
With copies to: Xxxx Stores Services, Inc.
Legal Department
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: General Counsel
Telephone No.: (000) 000-0000 Ext. 3024
Telecopy No.: (000) 000-0000
If to Wachovia as Wachovia Bank, National Association
Administrative Agent: Charlotte Plaza, CP-8
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to Wachovia as the Wachovia Bank, National Association
Issuing Lender: Research Drive, URP 4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Standby Letter of Credit Dept.
Telephone No.(000) 000-0000
Telecopy No.(000) 000-0000
With copies to: Wachovia Bank, National Association
One Wachovia Center, 5th Floor
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to any Lender: To the address set forth in the Register.
(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
Company 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.
SECTION 13.2 Expenses; Indemnity. The Borrowers 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, enforcing any
Obligations of, or collecting any payments due from, any Borrower or by reason
of an Event of Default; 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, except to the extent that
70
any of the foregoing directly result from the gross negligence or willful
misconduct of the party seeking indemnification therefor.
SECTION 13.3 Set-off. 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 13.9 are hereby authorized by the Borrowers at any time or from
time to time, without notice to the Borrowers 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 any 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 Company
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.
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 Borrowers hereby irrevocably consent 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 Borrowers hereby irrevocably
consent 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 any Borrower or its
properties in the courts of any other jurisdictions.
(b) Venue. The Borrowers hereby irrevocably waive any objection they
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 Borrowers irrevocably
waive, in
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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 Reversal of Payments. To the extent any 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 13.7 Injunctive Relief; Punitive Damages.
(a) The Borrowers recognize that, in the event a 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 Borrowers agree 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 Company (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 13.8 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
Borrowers notify the Administrative Agent that the Borrowers request 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 Company
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 13.9 Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of the Borrowers, the Administrative Agent and the Lenders,
all future holders of the Notes, and their respective successors and assigns,
except that the Borrowers shall not assign or transfer any of their rights or
obligations under this Agreement without the prior written consent of each
Lender.
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(b) Assignment by Lenders. Each Lender may, with the consent of the
Company (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, 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 or
participating interest in the Existing Letter of Credit); 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 $10,000,000;
(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 in the form of Exhibit G attached hereto
(an "Assignment and Acceptance"), together with any Note or Notes subject to
such assignment;
(iv) such assignment shall not, without the consent of the
Company, require any 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
(v) the assigning Lender shall pay to the Administrative Agent
an assignment fee of $3,000 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 thereof.
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, (A) the
assignee 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 assignee
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 name and address of each Lender, the amount of the Revolving Credit
Commitment and Existing L/C Commitment with respect to each Lender from time to
time and the amount of 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 Borrowers, 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.
73
The Register shall be available for inspection by the Company 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 an Eligible Assignee together
with any Note or Notes subject to such assignment and 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
Company; and
(iv) promptly deliver a copy of such Assignment and Acceptance
to the Company.
Within five (5) Business Days after receipt of notice, the Borrowers 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 Eligible Assignee 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 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 Company.
(f) Participations. Each Lender may sell participations to one or more
banks or other entities 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 or participating interest in the
Existing Letter of Credit); provided that:
(i) each such participation shall be in an amount not less
than $10,000,000;
(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;
74
(v) the Borrowers, 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 or extend any scheduled
payment date for principal of any Loan; and
(vii) any such disposition shall not, without the consent of
the Company, require any 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.
(g) Disclosure of Information; Confidentiality. The Administrative
Agent and the Lenders shall hold all non-public information with respect to the
Borrowers obtained pursuant to the Loan Documents 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 and Lenders may disclose any
such information to the extent such disclosure is required by law or requested
by any regulatory authority. Any Lender may, in connection with any assignment,
proposed assignment, participation or proposed participation pursuant to this
Section 13.9, disclose to the assignee, participant, proposed assignee or
proposed participant, any information relating to the Borrowers furnished to
such Lender by or on behalf of the Borrowers; provided, that prior to any such
disclosure, each such assignee, proposed assignee, participant or proposed
participant shall agree with the Company or such Lender to preserve the
confidentiality of any confidential information relating to the Borrowers
received from such Lender.
(h) Certain Pledges or Assignments. Nothing herein shall prohibit any
Lender from pledging or assigning any Note to any Federal Reserve Bank in
accordance with Applicable Law.
SECTION 13.10 Amendments, Waivers and Consents. Except as set forth
below or as specifically provided in any 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 Borrowers; provided, that no amendment, waiver or
consent shall (a) increase the Aggregate Commitment or increase the amount of
the Loans, (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
75
any Borrower from the Obligations (other than Hedging Obligations) hereunder,
(g) permit any assignment (other than as specifically permitted or contemplated
in this Agreement) of any of a Borrower's rights and obligations hereunder, (h)
amend the provisions of this Section 13.10 or the definition of Required
Lenders, in each case, without the prior written consent of each Lender or (i)
extend the time of the obligation of the Lenders holding Revolving Credit
Commitments 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 of (a) Article XII shall be made without the
written consent of the Administrative Agent and (b) Article III without the
written consent of the Issuing Lender.
SECTION 13.11 Performance of Duties. The Borrowers' obligations under
this Agreement and each of the other Loan Documents shall be performed by the
Borrowers at their sole cost and expense.
SECTION 13.12 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 13.13 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 13.14 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 13.15 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 13.16 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 13.17 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. No termination of this Agreement shall affect the rights
76
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 13.18 Advice of Counsel. Each of the parties represents to each
other party hereto that it has discussed this Agreement with its counsel.
SECTION 13.19 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 13.20 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.
(b) The Borrowers expressly acknowledge and agree that each covenant
contained in Articles VIII, IX, or X hereof shall be given independent effect.
Accordingly, the Borrowers shall not engage in any transaction or other act
otherwise prohibited under any covenant contained in Articles VIII, IX, or X if,
before or after giving effect to such transaction or act, the Borrowers shall or
would be in breach of any other covenant contained in Articles VIII, IX, or X.
[Signature pages to follow]
77
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.
[CORPORATE SEAL] XXXX, INC., as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Chairman of the Board
BELK ADMINISTRATION COMPANY,
as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Chairman of the Board
BELK INTERNATIONAL, INC.,
as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Chairman of the Board
XXXX STORES SERVICES, INC.,
as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Chairman of the Board
XXXX-XXXXXXX COMPANY, GREENVILLE,
SOUTH CAROLINA, as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Chairman of the Board
i
THE XXXX CENTER, INC, as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Chairman of the Board
UNITED ELECTRONIC SERVICES, INC.,
as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Chairman of the Board
BELK ACCOUNTS RECEIVABLE LLC,
as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Chairman of the Board
XXXX STORES OF VIRGINIA LLC,
as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Chairman of the Board
BELK GIFT CARD COMPANY LLC,
as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Chairman of the Board
ii
WACHOVIA BANK, NATIONAL ASSOCIATION,
formerly known as First Union
National Bank, as Administrative
Agent and Lender
By: /s/ Xxxxx Xxxxx Marks
--------------------------------
Name: Xxxxx Xxxxx Marks
Title: Director
iii
BANK OF AMERICA, N.A.,
as Syndication Agent and Lender
By: /s/ Xxx Xxxxxxxxxx
--------------------------------
Name: Xxx Xxxxxxxxxx
Title: Vice President
iv
BRANCH BANKING AND TRUST COMPANY,
as Documentation Agent and Lender
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
v
SUNTRUST BANK
By: /s/ X. Xxxx Key
---------------------------------
Name: X. Xxxx Key
Title: Director
vi
RBC CENTURA BANK
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
vii
COMPASS BANK
By: /s/ T. Xxx Xxxxxxxx
----------------------------------
Name: T. Xxx Xxxxxxxx
Title: Senior Vice President
viii
CAROLINA FIRST BANK
By: /s/ Xxxxx X. Short
----------------------------------
Name: Xxxxx X. Short
Title: Senior Vice President
ix
EXHIBIT A-1
-----------
to the
Credit Agreement
dated as of June 28, 2002
by and among
XXXX, INC.,
the Subsidiaries of Xxxx, Inc. party thereto,
as Borrowers,
the Lenders party thereto,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
BRANCH BANKING AND TRUST COMPANY,
as Documentation Agent
and
Wachovia Securities, Inc.
as Lead Arranger and Book Manager
FORM OF REVOLVING CREDIT NOTE
-----------------------------
REVOLVING CREDIT NOTE
---------------------
$__________ ___________ __, 2002
FOR VALUE RECEIVED, the undersigned, XXXX, INC., a corporation
organized under the laws of Delaware (the "Company"), and the Subsidiaries of
the Company listed on the signature pages hereto (each a "Borrower" and
together, the "Borrowers") hereby jointly and severally promise to pay to the
order of _________________________________, (the "Lender"), at the place and
times provided in the Credit Agreement referred to below, the principal sum of
_________________ DOLLARS ($__________) or, if less, the principal amount of all
Revolving Credit Loans made by the Lender from time to time pursuant to that
certain Credit Agreement, dated as of __________________ (as amended, restated
or otherwise modified, the "Credit Agreement") by and among the Borrowers, the
Lenders who are or may become a party thereto (collectively, the "Lenders") and
Wachovia Bank, National Association, as Administrative Agent. Capitalized terms
used herein and not defined herein shall have the meanings assigned thereto in
the Credit Agreement.
The unpaid principal amount of this Revolving Credit Note from time to
time outstanding is subject to mandatory repayment from time to time as provided
in the Credit Agreement and shall bear interest as provided in Section 4.1 of
the Credit Agreement. All payments of principal and interest on this Revolving
Credit Note shall be payable in lawful currency of the United States of America
in immediately available funds to the account designated in the Credit
Agreement.
This Revolving Credit Note is entitled to the benefits of, and
evidences Obligations incurred under, the Credit Agreement, to which reference
is made for a statement of the terms and conditions on which the Borrowers are
permitted and required to make prepayments and repayments of principal of the
Obligations evidenced by this Revolving Credit Note and on which such
Obligations may be declared to be immediately due and payable.
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF NORTH CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS
OR CHOICE OF LAW PRINCIPLES THEREOF.
The Debt evidenced by this Revolving Credit Note is senior in right of
payment to all Subordinated Debt referred to in the Credit Agreement.
The Borrowers hereby waive all requirements as to diligence,
presentment, demand of payment, protest and (except as required by the Credit
Agreement) notice of any kind with respect to this Revolving Credit Note.
[Signature Pages Follow]
IN WITNESS WHEREOF, the undersigned have executed this Revolving Credit
Note under seal as of the day and year first above written.
[CORPORATE SEAL] XXXX, INC., as a Borrower
By: /s/
--------------------------------
Name:
Title:
XXXX ADMINISTRATION COMPANY,
as a Borrower
By: /s/
--------------------------------
Name:
Title:
BELK INTERNATIONAL, INC.,
as a Borrower
By: /s/
--------------------------------
Name:
Title:
XXXX STORES SERVICES, INC.,
as a Borrower
By: /s/
--------------------------------
Name:
Title:
XXXX-XXXXXXX COMPANY, GREENVILLE,
SOUTH CAROLINA, as a Borrower
By: /s/
--------------------------------
Name:
Title:
THE XXXX CENTER, INC, as a Borrower
By: /s/
--------------------------------
Name:
Title:
UNITED ELECTRONIC SERVICES, INC.,
as a Borrower
By: /s/
--------------------------------
Name:
Title:
BELK ACCOUNTS RECEIVABLE LLC,
as a Borrower
By: /s/
--------------------------------
Name:
Title:
XXXX STORES OF VIRGINIA LLC,
as a Borrower
By: /s/
--------------------------------
Name:
Title:
BELK GIFT CARD COMPANY LLC,
as a Borrower
By: /s/
--------------------------------
Name:
Title:
2
EXHIBIT A-2
-----------
to the
Credit Agreement
dated as of June 28, 2002
by and among
XXXX, INC.,
and the Subsidiaries of Xxxx, Inc. party thereto,
as Borrowers,
the Lenders party thereto,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
BRANCH BANKING AND TRUST COMPANY,
as Documentation Agent
and
Wachovia Securities, Inc.
as Lead Arranger and Book Manager
FORM OF SWINGLINE NOTE
----------------------
SWINGLINE NOTE
--------------
$___________ __________ __, 2002
FOR VALUE RECEIVED, the undersigned, XXXX, INC., a corporation
organized under the laws of Delaware (the "Company"), and the Subsidiaries of
the Company listed on the signature pages hereto (each a "Borrower" and
together, the "Borrowers") hereby jointly and severally promise to pay to the
order of WACHOVIA BANK, NATIONAL ASSOCIATION (the "Lender"), at the place and
times provided in the Credit Agreement referred to below, the principal sum of
____________________________ DOLLARS ($____________) or, if less, the principal
amount of all Swingline Loans made by the Lender from time to time pursuant to
that certain Credit Agreement, dated as of _______________ , 2002 as amended,
restated or otherwise modified, the "Credit Agreement") by and among the
Borrowers, the Lenders who are or may become a party thereto (collectively, the
"Lenders") and Wachovia Bank, National Association, as Administrative Agent.
Capitalized terms used herein and not defined herein shall have the meanings
assigned thereto in the Credit Agreement.
The unpaid principal amount of this Swingline Note from time to time
outstanding is subject to mandatory repayment from time to time as provided in
the Credit Agreement and shall bear interest as provided in Section 4.1 of the
Credit Agreement. Swingline Loans refunded as Revolving Credit Loans in
accordance with Section 2.2(c) of the Credit Agreement shall be payable by the
Borrower as Revolving Credit Loans pursuant to the Revolving Credit Notes, and
shall not be payable under this Swingline Note as Swingline Loans. All payments
of principal and interest on this Swingline Note shall be payable in lawful
currency of the United States of America in immediately available funds to the
account designated in the Credit Agreement.
This Swingline Note is entitled to the benefits of, and evidences
Obligations incurred under, the Credit Agreement, to which reference is made for
a statement of the terms and conditions on which the Borrowers are permitted and
required to make prepayments and repayments of principal of the Obligations
evidenced by this Swingline Note and on which such Obligations may be declared
to be immediately due and payable.
THIS SWINGLINE NOTE SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF NORTH CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS
OR CHOICE OF LAW PRINCIPLES THEREOF.
The Debt evidenced by this Swingline Note is senior in right of payment
to all Subordinated Debt referred to in the Credit Agreement.
The Borrowers hereby waive all requirements as to diligence,
presentment, demand of payment, protest and (except as required by the Credit
Agreement) notice of any kind with respect to this Swingline Note.
[Signature Pages Follow]
IN WITNESS WHEREOF, the undersigned have executed this Swingline Note
under seal as of the day and year first above written.
[CORPORATE SEAL] XXXX, INC., as a Borrower
By: /s/
--------------------------------
Name:
Title:
XXXX ADMINISTRATION COMPANY,
as a Borrower
By: /s/
--------------------------------
Name:
Title:
BELK INTERNATIONAL, INC.,
as a Borrower
By: /s/
--------------------------------
Name:
Title:
XXXX STORES SERVICES, INC.,
as a Borrower
By: /s/
--------------------------------
Name:
Title:
XXXX-XXXXXXX COMPANY, GREENVILLE,
SOUTH CAROLINA, as a Borrower
By: /s/
--------------------------------
Name:
Title:
THE XXXX CENTER, INC, as a Borrower
By: /s/
--------------------------------
Name:
Title:
UNITED ELECTRONIC SERVICES, INC.,
as a Borrower
By: /s/
--------------------------------
Name:
Title:
BELK ACCOUNTS RECEIVABLE LLC,
as a Borrower
By: /s/
--------------------------------
Name:
Title:
XXXX STORES OF VIRGINIA LLC,
as a Borrower
By: /s/
--------------------------------
Name:
Title:
BELK GIFT CARD COMPANY LLC,
as a Borrower
By: /s/
--------------------------------
Name:
Title:
2
EXHIBIT B
---------
to the
Credit Agreement
dated as of June 28, 2002
by and among
XXXX, INC.,
and the Subsidiaries of Xxxx, Inc. party thereto,
as Borrowers,
the Lenders party thereto,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
BRANCH BANKING AND TRUST COMPANY,
as Documentation Agent
and
Wachovia Securities, Inc.
as Lead Arranger and Book Manager
FORM OF NOTICE OF BORROWING
---------------------------
NOTICE OF BORROWING
-------------------
Dated as of: ______________
Wachovia Bank, National Association,
as Administrative Agent
Xxxxxxxxx Xxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Borrowing is delivered to you pursuant to
the Credit Agreement dated as of __________ __, 2002 (as amended, restated or
otherwise modified, the "Credit Agreement"), by and among Xxxx, Inc., a Delaware
corporation (the "Company"), the Subsidiaries of the Company listed on the
signature pages thereto (each a "Borrower" and together, the "Borrowers"), the
lenders party thereto (the "Lenders") and Wachovia Bank, National Association,
as Administrative Agent.
1. The Borrowers hereby request that the Lenders make a [Revolving
Credit Loan] [Swingline Loan] to the Borrowers in the aggregate principal amount
of $___________. (Complete with an amount in accordance with Section 2.3(a) of
the Credit Agreement.)
2. The Borrowers hereby request that such Loan be made on the following
Business Day: _____________________. (Complete with a Business Day in accordance
with Section 2.3(a) of the Credit Agreement).
3. The Borrowers hereby request that the Revolving Credit Loan bear
interest at the following interest rate, plus the Applicable Margin, as set
forth below:
Termination Date for
Component Interest Period Interest Period
of Loan Interest Rate (LIBOR Rate only) (if applicable)
------- ------------- ----------------- --------------------
[Base Rate or LIBOR Rate]
4. The principal amount of all Loans and L/C Obligations outstanding as
of the date hereof (including the requested Loan) does not exceed the maximum
amount permitted to be outstanding pursuant to the terms of the Credit
Agreement.
5. All of the conditions applicable to the Loan requested herein as set
forth in the Credit Agreement have been satisfied as of the date hereof and will
remain satisfied to the date of such Loan.
6. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Borrowing as of the ____ day of _______, ____.
XXXX, INC., on behalf of itself and the other
Borrowers
By: /s/
-----------------------------------------
Name:
Title:
EXHIBIT C
---------
to the
Credit Agreement
dated as of June 28, 2002
by and among
XXXX, INC.,
and the Subsidiaries of Xxxx, Inc. party thereto,
as Borrowers,
the Lenders party thereto,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
BRANCH BANKING AND TRUST COMPANY,
as Documentation Agent
and
Wachovia Securities, Inc.
as Lead Arranger and Book Manager
FORM OF NOTICE OF ACCOUNT DESIGNATION
-------------------------------------
NOTICE OF ACCOUNT DESIGNATION
-----------------------------
Dated as of: _________
Wachovia Bank, National Association,
as Administrative Agent
Xxxxxxxxx Xxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you under Section
2.3(b) of the Credit Agreement dated as of __________ __, 2002 (as amended,
restated or otherwise modified, the "Credit Agreement"), by and among Xxxx,
Inc., a Delaware corporation (the "Company"), the Subsidiaries of the Company
listed on the signature pages thereto (each a "Borrower" and together, the
"Borrowers"), the lenders party thereto (the "Lenders") and Wachovia Bank,
National Association, as Administrative Agent.
1. The Administrative Agent is hereby authorized to disburse all Loan
proceeds into the following account(s):
_____________________________
ABA Routing Number: _________
Account Number: _____________
2. This authorization shall remain in effect until revoked or until a
subsequent Notice of Account Designation is provided to the Administrative
Agent.
3. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of Account
Designation as of the _____ day of _______, 2002.
XXXX, INC., on behalf of itself and the other
Borrowers
By: /s/
-----------------------------------------
Name:
Title:
EXHIBIT D
---------
to the
Credit Agreement
dated as of June 28, 2002
by and among
XXXX, INC.,
and the Subsidiaries of Xxxx, Inc. party thereto,
as Borrowers,
the Lenders party thereto,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
BRANCH BANKING AND TRUST COMPANY,
as Documentation Agent
and
Wachovia Securities, Inc.
as Lead Arranger and Book Manager
FORM OF NOTICE OF REPAYMENT
---------------------------
NOTICE OF REPAYMENT
-------------------
Dated as of: ________________
Wachovia Bank, National Association,
as Administrative Agent
Xxxxxxxxx Xxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Repayment is delivered to you under Section
2.4(c) of the Credit Agreement dated as of __________ __, 2002 (as amended,
restated or otherwise modified, the "Credit Agreement"), by and among Xxxx,
Inc., a Delaware corporation (the "Company"), the Subsidiaries of the Company
listed on the signature pages thereto (each a "Borrower" and together, the
"Borrowers"), the lenders party thereto (the "Lenders") and Wachovia Bank,
National Association, as Administrative Agent.
1. The Borrowers hereby provide notice to the Administrative Agent that
they shall repay the following [Base Rate Loans] and/or [LIBOR Rate Loans]:
____________________. (Complete with an amount in accordance with Section 2.4 of
the Credit Agreement.)
2. The Loan to be prepaid is a [check each applicable box]
[ ] Swingline Loan
[ ] Revolving Credit Loan
3. The Borrowers shall repay the above-referenced Loans on the
following Business Day: _______________. (Complete with a Business Day at least
one (1) Business Day subsequent to the date of this Notice of Repayment with
respect to any Swingline Loan or any Base Rate Loan and three (3) Business Days
subsequent to date of this Notice of Prepayment with respect to any LIBOR Rate
Loan. )
4. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Prepayment as of the ____ day of _______, 200_.
XXXX, INC., on behalf of itself and the other
Borrowers
By: /s/
-----------------------------------------
Name:
Title:
EXHIBIT E
---------
to the
Credit Agreement
dated as of June 28, 2002
by and among
XXXX, INC.,
and the Subsidiaries of Xxxx, Inc. party thereto,
as Borrowers,
the Lenders party thereto,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
BRANCH BANKING AND TRUST COMPANY,
as Documentation Agent
and
Wachovia Securities, Inc.
as Lead Arranger and Book Manager
FORM OF NOTICE OF CONVERSION/CONTINUATION
-----------------------------------------
NOTICE OF CONVERSION/CONTINUATION
---------------------------------
Dated as of: ______________
Wachovia Bank, National Association,
as Administrative Agent
Xxxxxxxxx Xxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation (the "Notice") is
delivered to you under Section 4.2 of the Credit Agreement dated as of
__________ __, 2002 (as amended, restated or otherwise modified, the "Credit
Agreement"), by and among Xxxx, Inc., a Delaware corporation (the "Company"),
the Subsidiaries of the Company listed on the signature pages thereto (each a
"Borrower" and together, the "Borrowers"), the lenders party thereto (the
"Lenders") and Wachovia Bank, National Association, as Administrative Agent.
1. This Notice is submitted for the purpose of: (Check one and complete
applicable information in accordance with the Credit Agreement.)
[ ] Converting all or a portion of a Base Rate Loan into
a LIBOR Rate Loan
(a) The aggregate outstanding principal balance of such
Loan is $_______________.
(b) The principal amount of such Loan to be converted is
$_______________.
(c) The requested effective date of the conversion of
such Loan is _______________.
(d) The requested Interest Period applicable to the
converted Loan is _______________.
[ ] Converting a portion of LIBOR Rate Loan into a Base
Rate Loan
(a) The aggregate outstanding principal balance of such
Loan is $_______________.
(b) The last day of the current Interest Period for such
Loan is _______________.
(c) The principal amount of such Loan to be converted is
$_______________.
(d) The requested effective date of the conversion of
such Loan is _______________.
[ ] Continuing all or a portion of a LIBOR Rate Loan as a
LIBOR Rate Loan
(a) The aggregate outstanding principal balance of such
Loan is $_______________.
(b) The last day of the current Interest Period for such
Loan is _______________.
(c) The principal amount of such Loan to be continued is
$_______________.
(d) The requested effective date of the continuation of
such Loan is _______________.
(e) The requested Interest Period applicable to the
continued Loan is _______________.
2. The principal amount of all Loans and L/C Obligations outstanding as
of the date hereof does not exceed the maximum amount permitted to be
outstanding pursuant to the terms of the Credit Agreement.
3. All of the conditions applicable to the conversion or continuation
of the Loan requested herein as set forth in the Credit Agreement have been
satisfied or waived as of the date hereof and will remain satisfied or waived to
the date of such Loan.
4. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Conversion/Continuation as of the ____ day of __________, 200_.
XXXX, INC., on behalf of itself and the other
Borrowers
By: /s/
-----------------------------------------
Name:
Title:
EXHIBIT F
---------
to the
Credit Agreement
dated as of June 28, 2002
by and among
XXXX, INC.,
and the Subsidiaries of Xxxx, Inc. party thereto,
as Borrowers,
the Lenders party thereto,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
BRANCH BANKING AND TRUST COMPANY,
as Documentation Agent
and
Wachovia Securities, Inc.
as Lead Arranger and Book Manager
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
----------------------------------------
OFFICER'S COMPLIANCE CERTIFICATE
--------------------------------
The undersigned, on behalf of Xxxx, Inc. (the "Company"), and on behalf
of the Subsidiaries of the Company listed on the signature pages to the Credit
Agreement referred to below (each a "Borrower" and together, the "Borrowers"),
hereby certifies to the Administrative Agent and the Lenders, each as defined in
the Credit Agreement referred to below, as follows:
1. This Certificate is delivered to you pursuant to Section 7.2 of the
Credit Agreement dated as of __________ __, 2002 (as amended, restated or
otherwise modified, the "Credit Agreement"), by and among the Borrowers, the
lenders party thereto (the "Lenders") and Wachovia Bank, National Association,
as Administrative Agent (the "Administrative Agent"). Capitalized terms used
herein and not defined herein shall have the meanings assigned thereto in the
Credit Agreement.
2. I have reviewed the financial statements of the Borrowers and their
Subsidiaries dated as of _______________ and for the _______________ period[s]
then ended and such statements fairly present in all material respects the
financial condition of the Borrowers and their Subsidiaries as of the dates
indicated and the results of their operations and cash flows for the period[s]
indicated.
3. I have reviewed the terms of the Credit Agreement, and the related
Loan Documents and have made, or caused to be made under my supervision, a
review in reasonable detail of the transactions and the condition of the
Borrowers and their Subsidiaries during the accounting period covered by the
financial statements referred to in Paragraph 2 above. Such review has not
disclosed the existence during or at the end of such accounting period of any
condition or event that constitutes a Default or an Event of Default, nor do I
have any knowledge of the existence of any such condition or event as at the
date of this Certificate [except, if such condition or event existed or exists,
describe the nature and period of existence thereof and what action the Borrower
has taken, is taking and proposes to take with respect thereto].
4. The Applicable Margin and calculations determining such figure are
set forth on the attached Schedule 1 and the Borrower and its Subsidiaries are
in compliance with the financial covenants contained in Article IX of the Credit
Agreement as shown on such Schedule 1 and the Borrowers and their Subsidiaries
are in compliance with the other covenants and restrictions contained in the
Credit Agreement.
[Signature Page Follows]
WITNESS the following signature as of the _____ day of _________, 2002.
XXXX, INC., on behalf of itself and the other
Borrowers
By: /s/
-----------------------------------------
Name:
Title:
2
Schedule 1
to
Officer's Compliance Certificate
[To be provided by Borrower in form acceptable to Administrative Agent]
3
EXHIBIT G
---------
to the
Credit Agreement
dated as of June 28, 2002
by and among
XXXX, INC.,
and the Subsidiaries of Xxxx, Inc. party thereto,
as Borrowers,
the Lenders party thereto,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
BRANCH BANKING AND TRUST COMPANY,
as Documentation Agent
and
Wachovia Securities, Inc.
as Lead Arranger and Book Manager
FORM OF ASSIGNMENT AND ACCEPTANCE
---------------------------------
ASSIGNMENT AND ACCEPTANCE
Dated as of:
Reference is made to the Credit Agreement dated as of_________________,
2002 (as amended, restated, supplemented or otherwise modified, the "Credit
Agreement") by and among Xxxx, Inc. a corporation organized under the laws of
the state of Delaware (the "Company") and the subsidiaries of the Company who
are or may become party thereto (together with the Company, the "Borrowers"),
the lenders who are or may become party thereto (collectively, the "Lenders")
and Wachovia Bank, National Association, as Administrative Agent. Capitalized
terms used herein without definition shall have the same meanings herein as in
the Credit Agreement.
____________________(the "Assignor") and (each an "Assignee", and
___________________________ collectively, the "Assignees") agree as follows:
SECTION 1. The Assignor hereby sells and assigns to each Assignee, and
the Assignee hereby purchases and assumes from the Assignor, as of the Effective
Date (as defined below), a percentage interest in and to the Assignor's
interest, rights and obligations with respect to its [Existing L/C
Commitment/Revolving Credit Commitment] and [participating interest in the
Existing Letter of Credit ("Existing L/C Interest")/Revolving Credit Loans] and,
from and after the Effective Date, all of the Assignor's corresponding
interests, rights and obligations under the Credit Agreement and other Loan
Documents, such that the [Existing L/C Commitment/Revolving Credit Commitment]
and [Existing L/C Commitment Percentage/Revolving Credit Commitment Percentage]
of the Assignees and the Assignor as of the Effective Date shall be as set forth
on Schedule 2 attached hereto. This Assignment and Acceptance is entered
pursuant to, and authorized by Section 13.9 of the Credit Agreement.
SECTION 2. The Assignor (a) represents that, as of the date hereof, its
[Existing L/C Commitment Percentage/Revolving Credit Commitment Percentage] and
[Existing L/C Interest/Revolving Credit Loans] (unreduced by any assignments
thereof which have not yet become effective) under the Credit Agreement are as
set forth on Schedule 1 attached hereto (b) makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Loan Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument or document
furnished pursuant thereto, other than that the Assignor is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (c) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any of the Borrowers or their Subsidiaries or the performance or observance
by the Borrowers or their Subsidiaries of any of their obligations under the
Credit Agreement or any other instrument or document furnished or executed
pursuant thereto; and (d) to the extent either the Assignor or Assignee requests
a Note or Notes, attaches the applicable Note(s) delivered to it under the
Credit Agreement and requests that the Borrowers exchange such Note(s) for new
Notes payable to each of the Assignor and the Assignee as follows:
[Revolving Credit Note]
Payable to the Order of: Principal Amount of Note:
------------------------ -------------------------
________________________ $_________
________________________ $_________
SECTION 3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 7.1 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (c)
agrees that it will, independently and without reliance upon the Assignor or any
other Lender or Administrative Agent and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement; (d)
confirms that it is an Eligible Assignee; (e) appoints and authorizes
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Loan Documents as are
delegated to such Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (f) agrees that it will perform in
accordance with their terms all the obligations which by the terms of the Credit
Agreement and the other Loan Documents are required to be performed by it as a
Lender; and (g) agrees that any information disclosed by or on behalf of the
Borrowers and any information obtained pursuant to the provisions of, or in
connection with, the Credit Agreement shall be used solely for purposes of the
Credit Agreement and not in any other manner, and, if such information is not
otherwise in the public domain, shall not be disclosed to any other Person
except in accordance with the provisions of Section 13.9(g) of the Credit
Agreement.
SECTION 4. The effective date for this Assignment and Acceptance shall
be __________, _____ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered with copies of all tax forms
required pursuant to Section 4.11(e) of the Credit Agreement, if applicable, to
the Administrative Agent for consent by the Borrowers and the Administrative
Agent, if required under Section 13.9 of the Credit Agreement and acceptance and
recording in the Register.
SECTION 5. Upon such consents, acceptance, recording and delivery of
tax forms, if applicable, from and after the Effective Date, (a) the Assignee
shall be a party to the Credit Agreement and the other Loan Documents to which
Lenders are parties and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender under each such
agreement, and (b) the Assignor shall, to the extent provided in this Assignment
and Acceptance, relinquish its rights (except, with respect to any assignment of
all of the Assignor's interest, rights and obligations with respect to its
Existing L/C Interest, Extensions of Credit under the Credit Agreement,
indemnification and reimbursement rights relating to the periods during which
such Assignor was a Lender party to the Credit Agreement) and be released from
its obligations under the Credit Agreement and the other Loan Documents.
SECTION 6. Upon such consents, acceptance, recording and delivery of
tax forms, if applicable, from and after the Effective Date, the Administrative
Agent shall make all payments in respect of the interest assigned hereby
(including payments of principal, interest, fees and other amounts) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments for periods prior to the Effective Date or with respect to the making
of this assignment directly between themselves.
SECTION 7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE DEEMED TO BE A
CONTRACT UNDER SEAL AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NORTH CAROLINA.
[SIGNATURE PAGES FOLLOW]
[Assignment and Acceptance]
ASSIGNOR
[_______________________]
By:
----------------------------------
Name:
Title:
Wiring Instructions:
Wachovia Bank, National Association
Charlotte, North Carolina Main Branch
Account No.:
ABA Routing No.: 053 000 219
Account Name: Xxxx, Inc.
Contact: Syndication Agency Services
(000) 000-0000
[SIGNATURE PAGES CONTINUE]
ASSIGNEES:
__________________________
By: ----------------------------------
By:
----------------------------------
Name:
Title:
[SIGNATURE PAGES CONTINUE]
To the Extent Required by the Credit Agreement, Acknowledged and Consented to on
behalf of the Borrowers:
XXXX, INC.
By: /s/
-----------------------------------
Name:
Title:
[SIGNATURE PAGES CONTINUE]
To the Extent Required by the Credit Agreement, Consented to and Accepted:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
--------------------------------
Name:
Title:
Schedule 1
--------------------------------------------------------------------------------
Lender [Existing L/C/Revolving [Existing L/C/Revolving Credit]
Credit] Commitment ($) Commitment Percentage (%)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
$__________ __________%
--------------------------------------------------------------------------------
Schedule 2
--------------------------------------------------------------------------------
Lender [Existing L/C/Revolving [Existing L/C/Revolving Credit]
Credit] Commitment ($) Commitment Percentage (%)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
$__________ __________%
--------------------------------------------------------------------------------
$__________ __________%
--------------------------------------------------------------------------------
Totals $__________ __________%
--------------------------------------------------------------------------------
EXHIBIT H
---------
to the
Credit Agreement
dated as of June 28, 2002
by and among
XXXX, INC.,
and the Subsidiaries of Xxxx, Inc. party thereto,
as Borrowers,
the Lenders party thereto,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
BRANCH BANKING AND TRUST COMPANY,
as Documentation Agent
and
Wachovia Securities, Inc.
as Lead Arranger and Book Manager
FORM OF JOINDER AGREEMENT
-------------------------
FORM OF JOINDER AGREEMENT
-------------------------
THIS JOINDER AGREEMENT, dated as of the ____ day of __________, ____
(the "Agreement"), to the Credit Agreement dated as of __________ __, 2002 (as
amended, restated or otherwise modified, the "Credit Agreement"), by and among
Xxxx, Inc., a Delaware corporation (the "Company"), the Subsidiaries of the
Company listed on the signature pages thereto (each a "Borrower" and together,
the "Borrowers"), the lenders party thereto (the "Lenders") and Wachovia Bank,
National Association, a national banking association, as Administrative Agent
(the "Administrative Agent") under such Credit Agreement.
Statement of Purpose
--------------------
The Borrowers, the Lenders and the Administrative Agent are parties to
the Credit Agreement dated as of __________, _____ (as supplemented hereby and
as further amended, restated, supplemented or otherwise modified, the "Credit
Agreement").
Pursuant to [insert description of agreement or transaction relating to
creation of New Subsidiary]. In connection therewith, the New Subsidiary is
required to execute, among other documents, a joinder agreement in order to
become a Borrower under the Credit Agreement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
1.01 Credit Agreement Supplement.
(a) Joinder of the New Subsidiary. Pursuant to Section 8.11 of the
Credit Agreement, the New Subsidiary hereby agrees that it is a Borrower under
the Credit Agreement as if a signatory thereof on the Closing Date, and the New
Subsidiary shall comply with and be subject to and have the benefit of all of
the terms, conditions, covenants, agreements and obligations set forth therein.
The New Subsidiary hereby agrees that each reference to a "Borrower" or the
"Borrowers" in the Credit Agreement and other Loan Documents shall include the
New Subsidiary, and each reference to the Credit Agreement or "Agreement" as
used therein shall mean the Credit Agreement as supplemented hereby. The New
Subsidiary acknowledges that it has received a copy of the Credit Agreement and
that it has read and understands the terms thereof.
(b) Schedules to the Credit Agreement. Attached hereto as Annex A are
updated copies of each Schedule referenced in the Credit Agreement revised to
include all information required to be provided therein with respect to the New
Subsidiary.
2.01 Effectiveness. This Agreement shall become effective upon receipt
by the Administrative Agent of (i) an originally executed Note for each Lender
jointly executed by each Borrower and the New Subsidiary in exchange for the
Notes issued on the Closing Date or the date of the most recent Joinder
Agreement, as applicable, (ii) an originally executed counterpart hereof, and
(iii) any other agreement or document required to be delivered in accordance
with Section 8.11 of the Credit Agreement.
3.01 General Provisions.
(a) Representations and Warranties.
(i) The Borrowers hereby confirm that each representation and
warranty made under the Loan Documents is true and correct in all material
respects as of the date hereof and that no Default or Event of Default has
occurred or is continuing under the Credit Agreement.
(ii) The Borrowers hereby represent and warrant that as of the
date hereof there are no claims or offsets against or defenses or counterclaims
to the obligations of the Borrowers under the Credit Agreement or any other Loan
Document.
(iii) The New Subsidiary hereby acknowledges it has received a
copy of the Loan Documents and that it has read and understands the terms
thereof.1
(b) Limited Effect. Except as supplemented hereby, the Credit Agreement
and each other Loan Document shall continue to be, and shall remain, in full
force and effect. This Agreement shall not be deemed (i) to be a waiver of, or
consent to, or a modification or amendment of, any other term or condition of
the Credit Agreement or any other Loan Document or (ii) to prejudice any right
or rights which the Administrative Agent or any Lender may now have or may have
in the future under or in connection with the Credit Agreement or the other Loan
Documents or any of the instruments or agreements referred to therein, as the
same may be amended or modified from time to time.
(c) Costs and Expenses. The Borrowers, hereby agree that they shall pay
or reimburse the Administrative Agent for all of its reasonable and customary
out-of-pocket costs and expenses incurred in connection with the preparation,
negotiation and execution of this Agreement including, without limitation, the
reasonable fees and disbursements of counsel.
(d) Counterparts. This Agreement may be executed by one or more of the
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
(e) Definitions. All capitalized terms used and not defined herein
shall have the meanings given thereto in the Credit Agreement.
--------------
1 Revise as appropriate for parties executing Joinder Agreement.
2
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA,
WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
3
IN WITNESS WHEREOF the undersigned hereby causes this Agreement to be
executed and delivered as of the date first above written.
BORROWER:
[CORPORATE SEAL] XXXX, INC., on behalf of itself and the other
Borrowers
By: /s/
-----------------------------------------
Name:
Title:
NEW SUBSIDIARY:
[CORPORATE SEAL] [NEW SUBSIDIARY]
By:
-----------------------------------------
Name:
Title:
ADMINISTRATIVE AGENT:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
-----------------------------------------
Name:
Title:
