EXHIBIT 4.5
[EXECUTION COPY]
CREDIT AGREEMENT
($500,000,000 Five Year Revolving Credit Facility)
dated as of
January 24, 2002
among
MEDTRONIC, INC.,
as Borrower,
CERTAIN OF ITS SUBSIDIARIES,
as Guarantors,
THE LENDERS PARTY HERETO,
BANK OF AMERICA, N.A.,
as Administrative Agent
and
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
ARTICLE I Definitions..............................................................................1
Section 1.01 Defined Terms............................................................1
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Section 1.02 Classification of Loans and Borrowings..................................16
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Section 1.03 Terms Generally.........................................................16
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Section 1.04 Accounting Terms; GAAP..................................................16
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ARTICLE II The Credits............................................................................17
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Section 2.01 Commitments.............................................................17
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Section 2.02 Revolving Loans and Revolving Borrowings................................17
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Section 2.03 Requests for Revolving Borrowings.......................................18
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Section 2.04 Requests for Swingline Borrowings.......................................19
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Section 2.05 Letters of Credit.......................................................20
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Section 2.06 Funding of Revolving Borrowings.........................................25
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Section 2.07 Interest Elections......................................................26
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Section 2.08 Termination and Reduction of Commitments................................27
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Section 2.09 Repayment of Loans; Evidence of Debt....................................28
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Section 2.10 Prepayment of Loans.....................................................28
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Section 2.11 Fees....................................................................29
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Section 2.12 Interest................................................................30
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Section 2.13 Alternate Rate of Interest..............................................32
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Section 2.14 Increased Costs.........................................................32
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Section 2.15 Break Funding Payments..................................................33
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Section 2.16 Taxes...................................................................34
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Section 2.17 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.............35
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Section 2.18 Mitigation Obligations; Replacement of Lenders..........................37
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ARTICLE III Representations and Warranties........................................................38
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Section 3.01 Organization; Powers....................................................38
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Section 3.02 Authorization; Enforceability...........................................38
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Section 3.03 Governmental Approvals; No Conflicts....................................38
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Section 3.04 Financial Condition; No Material Adverse Change.........................39
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Section 3.05 Properties..............................................................39
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Section 3.06 Litigation and Environmental Matters....................................39
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Section 3.07 Compliance with Laws and Agreements.....................................40
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Section 3.08 Investment and Holding Company Status...................................40
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Section 3.09 Taxes...................................................................40
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Section 3.10 ERISA...................................................................40
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Section 3.11 Disclosure..............................................................41
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Section 3.12 Federal Regulations.....................................................41
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Section 3.13 Purpose of Loans........................................................41
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Section 3.14 Subsidiaries and Significant Subsidiaries...............................41
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ARTICLE IV Conditions.............................................................................42
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Section 4.01 Closing Conditions......................................................42
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Section 4.02 Each Credit Event.......................................................43
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ARTICLE V Affirmative Covenants...................................................................43
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Section 5.01 Financial Statements and Other Information..............................43
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Section 5.02 Notices of Material Events..............................................45
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Section 5.03 Existence; Conduct of Business..........................................45
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Section 5.04 Payment of Obligations..................................................45
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Section 5.05 Maintenance of Properties; Insurance....................................46
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Section 5.06 Books and Records; Inspection Rights....................................46
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Section 5.07 Compliance with Laws....................................................46
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Section 5.08 Use of Proceeds.........................................................46
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Section 5.09 Maintenance of Accreditation, Etc.......................................46
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Section 5.10 Additional Subsidiary Guarantors........................................47
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ARTICLE VI Negative Covenants.....................................................................47
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Section 6.01 Consolidated Tangible Net Worth.........................................47
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Section 6.02 Indebtedness............................................................47
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Section 6.03 Liens...................................................................48
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Section 6.04 Fundamental Changes.....................................................48
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Section 6.05 Transactions with Affiliates............................................49
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Section 6.06 Restrictive Agreements..................................................49
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Section 6.07 Business Activity.......................................................49
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Section 6.08 Restricted Payments.....................................................49
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ARTICLE VII Events of Default.....................................................................50
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ARTICLE VIII The Administrative Agent.............................................................52
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Section 8.01 Appointment and Authorization of Administrative Agent...................52
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Section 8.02 Notice of Default.......................................................53
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Section 8.03 Reliance by Administrative Agent........................................53
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Section 8.04 Delegation of Duties....................................................53
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Section 8.05 Successor Administrative Agent..........................................53
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Section 8.06 Credit Decision; Disclosure of Information by Administrative Agent......54
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Section 8.07 Indemnification of Administrative Agent.................................54
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Section 8.08 Administrative Agent in its Individual Capacity.........................55
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ARTICLE IX Miscellaneous..........................................................................55
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Section 9.01 Notices.................................................................55
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Section 9.02 Waivers; Amendments.....................................................57
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Section 9.03 Expenses; Indemnity; Damage Waiver......................................58
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Section 9.04 Successors and Assigns..................................................59
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Section 9.05 Survival................................................................62
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Section 9.06 Counterparts; Integration; Effectiveness................................62
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Section 9.07 Severability............................................................63
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Section 9.08 Right of Setoff.........................................................63
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Section 9.09 Governing Law; Jurisdiction; Consent to Service of Process..............63
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Section 9.10 WAIVER OF JURY TRIAL....................................................64
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Section 9.11 Headings................................................................64
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Section 9.12 Confidentiality.........................................................64
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ARTICLE X GUARANTY................................................................................65
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Section 10.1 The Guaranty............................................................65
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Section 10.2 Bankruptcy..............................................................66
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Section 10.3 Nature of Liability.....................................................66
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Section 10.4 Independent Obligation..................................................66
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Section 10.5 Authorization...........................................................67
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Section 10.6 Reliance................................................................67
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Section 10.7 Waiver..................................................................67
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Section 10.8 Limitation on Enforcement...............................................68
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Section 10.9 Confirmation of Payment.................................................69
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SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.06 -- Disclosed Matters
Schedule 3.14 -- Subsidiaries and Significant Subsidiaries
Schedule 6.02 -- Existing Indebtedness
Schedule 6.03 -- Existing Liens
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Joinder Agreement
Exhibit C -- Form of Revolving Borrowing Request
Exhibit D -- Form of Interest Election Request
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CREDIT AGREEMENT
THIS FIVE YEAR CREDIT AGREEMENT (this "Credit Agreement" or
"Agreement"), dated as of January 24, 2002, among Medtronic, Inc., a Minnesota
corporation (the "Borrower"), the Subsidiaries of the Borrower listed on the
signature pages hereto (individually a "Guarantor", collectively the
"Guarantors"), the Lenders party hereto, and Bank of America, N.A., as
Administrative Agent, Issuing Bank and Swingline Lender.
W I T N E S S E T H:
WHEREAS, the Borrower is party to the $3,000,000,000 Credit Agreement
dated as of August 27, 2001, as amended (the "Existing Credit Agreement"), among
the Borrower, certain Subsidiaries of the Borrower party thereto, the lenders
parties thereto and Bank of America, N.A., as Administrative Agent.
WHEREAS, the Borrower desires to replace the Existing Credit Agreement
with this Agreement and the 364-Day Facility (as defined below) upon the terms,
and subject to the conditions, hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINED TERMS.
As used in this Credit Agreement, the following terms have the meanings
specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Alternate
Base Rate.
"Administrative Agent" means Bank of America, in its capacity
as administrative agent for the Lenders hereunder, and its successors
in such capacity.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Agent-Related Persons" means the Administrative Agent
(including any successor agent), together with its Affiliates
(including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and
(b) the Federal Funds Effective Rate in effect on such day plus 1/2 of
1%. Any change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective from and
including the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's
Commitment. If the Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Commitments
most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to any
Eurodollar Loan, or with respect to the facility fees or utilization
fees payable hereunder, as the case may be, the applicable rate per
annum set forth below (in basis points) under the caption "Eurodollar
Spread", "Facility Fee Rate", or "Utilization Fee Rate", as the case
may be, based upon the ratings by Moody's and S&P, respectively,
applicable on such date to the Index Debt:
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CATEGORY MOODY'S/S&P RATING EURODOLLAR SPREAD FACILITY FEE RATE UTILIZATION FEE RATE
(COMMITMENT
UTILIZATION PERCENTAGE
GREATER THAN 50%)
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I Greater than or equal to Aa2/AA 12.25 6.5 5.0
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II Greater than or equal to Aa3/AA- 13.00 7.0 7.5
but less than Aa2/AA
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III Greater than or equal to A1/A+ 19.50 8.0 7.5
but less than Aa3/AA-
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IV Greater than or equal to A2/A 25.00 10.0 10.0
but less than A1/A+
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V Less than A2/A 32.50 12.5 12.5
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For purposes of the foregoing, (i) if either Moody's or S&P
shall not have in effect a rating for the Index Debt (other than by
reason of the circumstances referred to in the last sentence of this
definition), then such rating agency shall be deemed to have
established a rating in Category V; (ii) if the ratings established or
deemed to have been established by Moody's and S&P for the Index Debt
shall fall within different Categories, the Applicable Rate shall be
based on the higher of the two ratings unless one of the two ratings is
two or more Categories lower than the other, in which case the
Applicable Rate shall be determined by reference to the Category next
above that of the lower of the two
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ratings; and (iii) if the ratings established or deemed to have been
established by Moody's and S&P for the Index Debt shall be changed
(other than as a result of a change in the rating system of Moody's or
S&P), such change shall be effective as of the date on which it is
first announced by the applicable rating agency. Each change in the
Applicable Rate shall apply during the period commencing on the
effective date of such change and ending on the date immediately
preceding the effective date of the next such change. If the rating
system of Moody's or S&P shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt obligations,
the Borrower and the Lenders shall negotiate in good faith to amend
this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be
determined by reference to the rating most recently in effect prior to
such change or cessation.
"Approved Fund" means with respect to any Lender that is a
fund that invests in commercial loans, any other fund that invests in
commercial loans and is managed or advised by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"Arranger" means Banc of America Securities LLC, in its
capacity as sole lead arranger and sole book manager.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 9.04), and accepted by the
Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.
"Availability Period" means the period from and including the
Closing Date to but excluding the earlier of the Maturity Date and the
date of termination of the Commitments.
"Bank of America" means Bank of America, N.A.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Medtronic, Inc., a Minnesota corporation.
"Borrowing" means a Revolving Borrowing or a Swingline
Borrowing, as the case may be.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina or New
York, New York are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
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"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease
of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases on a balance sheet of
such Person under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation,
capital stock, (ii) in the case of an association or business entity,
any and all shares, interests, participations, rights or other
equivalents (however designated) of capital stock, (iii) in the case of
a partnership, partnership interests (whether general or limited), (iv)
in the case of a limited liability company, membership interests and
(v) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person.
"Cash Equivalents" shall mean (a) securities issued or
directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in
support thereof) having maturities of not more than twelve months from
the date of acquisition ("Government Obligations"), (b) U.S. dollar
denominated (or foreign currency fully hedged) time deposits,
certificates of deposit, Eurodollar time deposits and Eurodollar
certificates of deposit of (y) any domestic commercial bank of
recognized standing having capital and surplus in excess of
$250,000,000 or (z) any bank whose short-term commercial paper rating
from S&P is at least A-1 or the equivalent thereof or from Xxxxx'x is
at least P-1 or the equivalent thereof (any such bank being an
"Approved Bank"), in each case with maturities of not more than 364
days from the date of acquisition, (c) commercial paper and variable or
fixed rate notes issued by any Approved Bank (or by the parent company
thereof) or commercial paper or any variable rate notes issued by, or
guaranteed by any domestic corporation rated A-2 (or the equivalent
thereof) or better by S&P or P-2 (or the equivalent thereof) or better
by Moody's and maturing within six months of the date of acquisition,
(d) repurchase agreements with a bank or trust company (including a
Lender) or a recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the United States of America, (e) obligations of any
state of the United States or any political subdivision thereof for the
payment of the principal and redemption price of and interest on which
there shall have been irrevocably deposited Government Obligations
maturing as to principal and interest at times and in amounts
sufficient to provide such payment and (f) auction preferred stock
rated in the highest short-term credit rating category by S&P or
Moody's.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or
group (within the meaning of the Securities Exchange Act of 1934 and
the rules of the SEC thereunder as in effect on the date hereof), of
shares representing more than 25% of the aggregate ordinary voting
power represented by the issued and outstanding Capital Stock of the
Borrower; (b) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the
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Borrower by Persons who were neither (i) nominated by the board of
directors of the Borrower nor (ii) appointed by directors so nominated;
or (c) the acquisition of direct or indirect Control of the Borrower by
any Person or group.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Credit Agreement, (b) any change in
any law, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the date of this Credit
Agreement or (c) compliance by any Lender or the Issuing Bank (or, for
purposes of Section 2.14(b), by any lending office of such Lender or by
such Lender's or the Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of
this Credit Agreement.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Loans and to acquire participations
in Swingline Loans and Letters of Credit hereunder, expressed as an
amount representing the maximum aggregate amount of such Lender's
Revolving Credit Exposure hereunder, as such commitment may be reduced
from time to time pursuant to Section 2.08. The initial amount of each
Lender's Commitment is set forth on Schedule 2.01, or in the Assignment
and Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable.
"Commitment Utilization Percentage" means on any day the
percentage equivalent of a fraction (a) the numerator of which is the
sum of (i) the aggregate outstanding principal amount of Loans (but not
including any Swingline Loans) hereunder plus the aggregate amount of
LC Exposure hereunder plus (ii) the aggregate outstanding principal
amount of "Loans" under the 364-Day Facility (as such term is defined
therein) and (b) the denominator of which is the sum of (i) aggregate
amount of the Commitments (or, on any day after termination of the
Commitments, the aggregate amount of the Commitments in effect
immediately preceding such termination) hereunder plus (ii) the
aggregate amount of the Commitments (or, on any day after termination
of the Commitments, the aggregate amount of the Commitments in effect
immediately preceding such termination) under the 364-Day Facility (as
such term is defined therein).
"Consolidated Assets" means the consolidated assets of the
Borrower and its Subsidiaries, determined in accordance with GAAP.
"Consolidated Tangible Assets" means the Consolidated Assets
less: (i) goodwill and (ii) other intangibles (other than patents,
trademarks, licenses, copyrights and other intellectual property and
prepaid assets).
"Consolidated Tangible Net Worth" means at any date,
Consolidated Tangible Assets minus Consolidated Total Liabilities,
determined in accordance with GAAP.
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"Consolidated Total Liabilities" means at any date, with
respect to the Borrower and its Subsidiaries on a consolidated basis,
total liabilities, determined in accordance with GAAP.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of
a Person, whether through the ability to exercise voting power, by
contract or otherwise. "Controlling" and "Controlled" have meanings
correlative thereto.
"Credit Documents" means a collective reference to this Credit
Agreement, the promissory notes, if any, each Joinder Agreement and all
other related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto (in each case as the same may
be amended, modified, restated, supplemented, extended, renewed or
replaced from time to time), and "Credit Document" means any one of
them.
"Debt Issuance" means the issuance of any Indebtedness for
borrowed money by the Borrower or any of its Subsidiaries.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would,
unless cured or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States
of America.
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or
binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources or the management,
release or threatened release of any Hazardous Material.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or
(e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Issuance" means any issuance by the Borrower or any of
its Subsidiaries to any Person of (a) shares of its Capital Stock other
than (i) any shares of its Capital Stock pursuant to the exercise of
options or warrants, (ii) any shares of its Capital Stock pursuant to
the conversion of any debt securities to equity and (iii) in the case
of Subsidiaries, any
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shares of its Capital Stock issued to the Borrower or any of its
Subsidiaries or (b) any options or warrants relating to its Capital
Stock. The term "Equity Issuance" shall not include (i) any Debt
Issuance or (ii) the issuance of Capital Stock of the Borrower pursuant
to any stock plans of the Borrower or its Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect
to a Plan (other than an event for which the 30-day notice period is
waived); (b) the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code or Section
302 of ERISA), whether or not waived; (c) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan;
(d) the incurrence by the Borrower or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination
of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the LIBO
Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excess Utilization Day" means each day on which the
Commitment Utilization Percentage exceeds 50%.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any
payment to be made by or on account of any obligation of the Borrower
hereunder, (a) income or franchise taxes imposed on (or measured by)
its net income by the United States of America, or by the jurisdiction
under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located,
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(b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which any Lender
is located and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.18(b)),
any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Credit
Agreement or is attributable to such Foreign Lender's failure or
inability to comply with Section 2.16(e), except to the extent that
such Foreign Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.16(a).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of
1%) of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.
"Fee Letter" means the letter agreement dated December 14,
2001 addressed to the Borrower from the Administrative Agent, as
amended, modified, restated or otherwise supplemented from time to
time.
"Financial Officer" means the chief financial officer,
principal accounting officer, senior vice president of finance,
treasurer, assistant treasurer, controller or assistant controller of
the Borrower or any officer having substantially the same position for
the Borrower.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is
located. For purposes of this definition, the United States of America,
each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision
thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including any obligation of the
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guarantor, direct or indirect, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the
owner of such Indebtedness or other obligation of the payment thereof,
(c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable
the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation; provided,
that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business.
"Guarantor" means each of the Persons identified as a
"Guarantor" on the signature pages hereto and each Person which may
hereafter execute a Joinder Agreement pursuant to Section 5.10,
together with their successors and permitted assigns, and "Guarantor"
means any one of them.
"Guaranty" shall mean the guaranty of the Guarantors set forth
in Article X.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or
other pollutants, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls,
radon gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate or
commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to
similar cash advances (including, without limitation, all obligations
pursuant to any sale or financing of receivables, but excluding any
premiums, fees and deposits received in the ordinary course of
business), (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such
Person under conditional sale or other title retention agreements
relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or
services (excluding current accounts payable or other like obligations
incurred in the ordinary course of business), (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (f) all Guarantees by
such Person of Indebtedness of others, (g) all Capital Lease
Obligations of such Person, (h) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty and (i) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to
9
the extent such Person is liable therefor as a result of such Person's
ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is
not liable therefor. Notwithstanding the foregoing, Indebtedness shall
exclude Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary.
"Indemnified Liabilities" shall have the meaning assigned to
such term in Section 9.03(b).
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness
for borrowed money of the Borrower that is not guaranteed by any other
Person or subject to any other credit enhancement.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section
2.07, in substantially the form of Exhibit D.
"Interest Payment Date" means (a) with respect to any ABR Loan
(including Swingline Loans), the last day of each March, June,
September and December, and (b) with respect to any Eurodollar Loan,
the last day of the Interest Period applicable to the Revolving
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration,
each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such
Interest Period.
"Interest Period" means with respect to any Eurodollar
Borrowing, the period commencing on the date of such Eurodollar
Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the
Borrower may elect; provided, that (i) if any Interest Period would end
on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the immediately preceding
Business Day and (ii) any Interest Period that commences on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period.
"Issuing Bank" means Bank of America in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such
capacity as provided in Section 2.05(j).
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Exhibit B hereto, executed and delivered by a new Guarantor
in accordance with the provisions of Section 5.10.
"LC Commitment" means $50,000,000.
10
"LC Disbursement" means a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus
(b) the aggregate amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time. The LC
Exposure of any Lender at any time shall be its Applicable Percentage
of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an
Assignment and Acceptance, other than any such Person that ceases to be
a party hereto pursuant to an Assignment and Acceptance.
"Letter of Credit" means any letter of credit issued pursuant
to this Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the
Telerate screen (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing
rate quotations comparable to those currently provided on such page of
such Service, as determined by the Administrative Agent from time to
time for purposes of providing quotations of interest rates applicable
to dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with
respect to such Eurodollar Borrowing for such Interest Period shall be
the rate at which dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in
the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset (a) any mortgage, deed
of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the
same economic effect as any of the foregoing) relating to such asset
and (c) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to Article II of this Credit Agreement (including, without
limitation, the Swingline Loans).
"Material Adverse Effect" means a material adverse effect on
(a) the business, property, operations or financial condition of the
Borrower and the Subsidiaries taken as a whole, (b) the ability of the
Borrower to perform any of its obligations under this Credit Agreement
or (c) the legal rights of or benefits available to the Lenders under
this Credit Agreement.
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"Material Indebtedness" means Indebtedness (other than the
Loans), or obligations in respect of one or more Hedging Agreements, of
any one or more of the Borrower and its Subsidiaries in an aggregate
principal amount exceeding $100,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the
Borrower or any Subsidiary in respect of any Hedging Agreement at any
time shall be the maximum aggregate amount (giving effect to any
netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.
"Maturity Date" means the fifth anniversary of the Closing
Date.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means the aggregate proceeds paid in cash
or Cash Equivalents received by the Borrower or any of its Subsidiaries
in respect of any Equity Issuance or Debt Issuance, net of (a) direct
costs (including, without limitation, legal, accounting and investment
banking fees, and sales commissions) and (b) taxes paid or payable as a
result thereof; it being understood that "Net Cash Proceeds" shall
include, without limitation, any cash or Cash Equivalents received upon
the sale or other disposition of any non-cash consideration received by
the Borrower or any Subsidiary of the Borrower in any Equity Issuance
or Debt Issuance.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to,
this Credit Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar
functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 5.04;
12
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) Liens arising out of judgments or awards so long as an
appeal or proceeding for review is being prosecuted in good faith and
for the payment of which adequate reserves, bonds or other security
reasonably acceptable to the Administrative Agent have been provided or
are fully covered by insurance; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Borrower or any
Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any
Lien securing Indebtedness.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of
which the Borrower or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Bank of America as its prime rate in
effect at its principal office in Charlotte, North Carolina; each
change in the Prime Rate shall be effective from and including the date
such change is publicly announced as being effective.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Register" has the meaning set forth in Section 9.04(c).
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's
Affiliates.
13
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing more
than 50% of the sum of the total Revolving Credit Exposures and unused
Commitments at such time.
"Restricted Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of capital stock of the Borrower or any of its Subsidiaries, now or
hereafter outstanding, (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of capital stock of the Borrower
or any of its Subsidiaries, now or hereafter outstanding, and (iii) any
payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of
capital stock of the Borrower or any of its Subsidiaries, now or
hereafter outstanding.
"Revolving Borrowing" means Revolving Loans of the same Type,
made, converted or continued on the same date and in the case of
Eurodollar Loans, as to which a single Interest Period is in effect.
"Revolving Borrowing Request" means a request by the Borrower
for a Revolving Borrowing in accordance with Section 2.03, in
substantially the form of Exhibit C.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum of the outstanding principal amount of such
Lender's Loans, Swingline Exposure and LC Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"SEC" means the United States Securities and Exchange
Commission.
"S&P" means Standard & Poor's Ratings Services.
"Significant Subsidiary" means, at any particular time, any
Subsidiary of the Borrower (or such Subsidiary and its Subsidiaries
taken together) that would be a "significant subsidiary" of the
Borrower within the meaning of Rule 1-02 under Regulation S-X
promulgated by the SEC.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator
of which is the number one minus the aggregate of the maximum reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent or any Lender is subject for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under
such Regulation D or any comparable regulation. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
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"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated
with those of the parent in the parent's consolidated financial
statements if such financial statements were prepared in accordance
with GAAP as of such date, as well as any other corporation, limited
liability company, partnership, association or other entity (a) of
which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or, in
the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, Controlled or held, or (b) that
is, as of such date, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Swingline Borrowing" means a Swingline Loan made pursuant to
Section 2.04(b).
"Swingline Commitment" means the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any
time outstanding of up to the Swingline Committed Amount.
"Swingline Committed Amount" shall have the meaning assigned
to such term in Section 2.04(a).
"Swingline Exposure" means, at any time, the aggregate amount
of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
"Swingline Lender" means Bank of America, in its capacity as
lender of Swingline Loans hereunder, and its successors in such
capacity.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Transactions" means the execution, delivery and performance
by the Borrower of this Credit Agreement, the borrowing of Loans, the
use of the proceeds thereof and the issuance of Letters of Credit
hereunder.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
comprising such Borrowing, is determined by reference to the LIBO Rate
or the Alternate Base Rate.
15
"Used Commitment" means the aggregate outstanding principal
amount of Loans (but not including any Swingline Loans) hereunder plus
the aggregate amount of LC Exposure hereunder.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
"364-Day Facility" means the Credit Agreement ($750,000,000
364-Day Revolving Credit Facility), dated as of the date hereof, among
the Borrower, the subsidiaries of the Borrower party thereto, the
lenders parties thereto and Bank of America, as administrative agent,
providing for a $750,000,000 revolving credit facility for a 364-day
period, as amended or extended from time to time.
SECTION 1.02 CLASSIFICATION OF LOANS AND BORROWINGS.
For purposes of this Agreement, Loans may be classified and referred to
by Type (e.g., a "Eurodollar Loan"). Borrowings also may be classified and
referred to by Type (e.g., a "Eurodollar Borrowing").
SECTION 1.03 TERMS GENERALLY.
The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Credit Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, this Credit Agreement and (e) the words "asset" and "property"
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
SECTION 1.04 ACCOUNTING TERMS; GAAP.
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision
16
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 herewith.
ARTICLE II
THE CREDITS
SECTION 2.01 COMMITMENTS.
Subject to the terms and conditions set forth herein, each Lender
agrees to make Loans to the Borrower from time to time during the Availability
Period in an aggregate principal amount that will not result in (a) the
aggregate principal amount of such Lender's Revolving Credit Exposure exceeding
such Lender's Commitment or (b) the total Revolving Credit Exposures exceeding
the total Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow Loans.
SECTION 2.02 REVOLVING LOANS AND REVOLVING BORROWINGS.
(a) Each Revolving Loan shall be made as part of a Revolving
Borrowing consisting of Revolving Loans made by the Lenders ratably in
accordance with their respective Commitments. The failure of any Lender
to make any Revolving Loan required to be made by it shall not relieve
any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Revolving Loans as
required.
(b) Subject to Section 2.13, each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may
request in accordance herewith. Each Swingline Loan shall be an ABR
Loan. Each Lender at its option may make any Eurodollar Loan by causing
any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the
terms of this Credit Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing or on the date of any ABR Borrowing, such
Revolving Borrowing shall be in a minimum aggregate amount of
$5,000,000 and integral multiples of $500,000 in excess thereof;
provided that an ABR Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments. Revolving
Borrowings of more than one Type may be outstanding at the same time;
provided that there shall not at any time be more than an aggregate
total of ten Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Credit
Agreement, the Borrower shall not be entitled to request, or to elect
to convert or continue, any Revolving Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.
17
SECTION 2.03 REQUESTS FOR REVOLVING BORROWINGS.
To request a Revolving Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 12:00 noon (Charlotte, North Carolina
time), three Business Days before the date of the proposed Revolving Borrowing
or (b) in the case of an ABR Borrowing, not later than 12:00 noon (Charlotte,
North Carolina time), on the date of the proposed Revolving Borrowing, including
any such notice of an ABR Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e). Each such telephonic Revolving
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Revolving
Borrowing Request signed by a Financial Officer of the Borrower. Each such
telephonic and written Revolving Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Revolving
Borrowing;
(ii) the date of such Revolving Borrowing, which
shall be a Business Day;
(iii) whether such Revolving Borrowing is to be an
ABR Borrowing or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the
initial Interest Period to be applicable thereto, which shall
be a period contemplated by the definition of the term
"Interest Period"; and
(v) the location and number of the Borrower's account
to which funds are to be disbursed, which shall comply with
the requirements of Section 2.06.
If no election as to the Type of Revolving Borrowing is specified, then
the requested Revolving Borrowing shall be an ABR Borrowing. If no Interest
Period is specified with respect to any requested Eurodollar Borrowing, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Revolving Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Revolving Borrowing.
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SECTION 2.04 REQUESTS FOR SWINGLINE BORROWINGS.
(a) Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to the Borrower from
time to time during the Availability Period; provided that (i) the
aggregate principal amount of Swingline Loans outstanding at any time
shall not exceed $50,000,000 (the "Swingline Committed Amount"), and
(ii) the sum of the total Revolving Credit Exposures shall not exceed
the total Commitments. Subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) Whenever the Borrower desires a Swingline Loan hereunder
it shall give written notice (or telephonic notice promptly confirmed
in writing), signed by a Financial Officer of the Borrower, to the
Swingline Lender not later than 1:00 P.M., (Charlotte, North Carolina
time), on the Business Day of the requested Swingline Loan. Each such
notice shall be irrevocable and shall specify (i) that a Swingline Loan
is requested, (ii) the date of the requested Swingline Loan (which
shall be a Business Day) and (iii) the principal amount of the
Swingline Loan requested. Each Swingline Loan shall be made as an ABR
Loan and shall have such maturity date as set forth in paragraph (d)
below. The Swingline Lender shall make each Swingline Loan available to
the Borrower by 3:00 P.M., (Charlotte, North Carolina time), on the
Business Day of the requested Swingline Borrowing.
(c) Each Swingline Loan shall be in a minimum principal amount
of $1,000,000 and integral multiples of $100,000 in excess thereof (or
the remaining amount of the Swingline Committed Amount, if less).
(d) The principal amount of all Swingline Loans shall be due
and payable on the earlier of (i) a date not more than seven (7)
Business Days from the date of advance thereof or (ii) the Maturity
Date. The Borrower may prepay all or a portion of any Swingline Loan at
any time without premium or penalty. The Swingline Lender may, at any
time, in its sole discretion, upon one Business Day's prior written
notice to the Borrower and the Lenders, demand repayment of any
Swingline Loan by way of a Revolving Borrowing, in which case the
Borrower shall be deemed to have requested a Revolving Borrowing
comprised solely of ABR Loans in the amount of such Swingline Loan.
Each Lender hereby irrevocably agrees to make a Loan ratably in
accordance with its respective Commitment as set forth in Section
2.02(a) in the amount, in the manner and on the date specified in the
preceding sentence notwithstanding (i) the amount of such Revolving
Borrowing may not comply with the minimum amount for ABR Borrowings
otherwise required hereunder, (ii) whether any conditions specified in
Section 4.02 are then satisfied, (iii) whether a Default or an Event of
Default then exists, (iv) failure of any such request or deemed request
for an ABR Borrowing to be made by the time otherwise required
hereunder, (v) whether the date of such Revolving Borrowing is a date
on which ABR Borrowings are otherwise permitted to be made hereunder or
(vi) any termination of the Commitments relating thereto immediately
prior to or contemporaneously with such Revolving Borrowing. In the
event that any Revolving Borrowing cannot for any reason be made on the
date otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under
19
any federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect), then each Lender hereby agrees
that it shall forthwith purchase (as of the date such Revolving
Borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to such
purchase) from the Swingline Lender its Applicable Percentage of the
outstanding Swingline Loans as shall be necessary to cause each such
Lender to share in such Swingline Loans ratably based upon its
Applicable Percentage (determined before giving effect to any
termination of the Commitments pursuant to Section 2.08), provided that
(i) all interest payable on the Swingline Loans shall be for the
account of the Swingline Lender until the date as of which the
respective interests in the outstanding Swingline Loans are purchased
and (ii) at the time any purchase of the respective interests in the
outstanding Swingline Loans pursuant to this sentence is actually made,
the purchasing Lender shall be required to pay to the Swingline Lender,
to the extent not paid to the Swingline Lender by the Borrower in
accordance with Section 2.12, interest on the principal amount of the
outstanding Swingline Loans purchased for each day from and including
the day upon which such Revolving Borrowing would otherwise have
occurred to but excluding the date of payment for such purchase, at the
rate equal to the Federal Funds Effective Rate.
SECTION 2.05 LETTERS OF CREDIT.
(a) General. Subject to the terms and conditions set forth
herein, the Borrower may request the issuance (or the amendment,
renewal or extension) of Letters of Credit for its own account or the
account of any Subsidiary, in a form acceptable to the Issuing Bank, at
any time and from time to time during the Availability Period. In the
event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered
into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
Notwithstanding any language in a letter of credit application or other
agreement, no Lien shall be granted by the Borrower or any Subsidiary
pursuant to such application or agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the
amendment, renewal or extension of an outstanding Letter of Credit),
the Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
Issuing Bank) to the Issuing Bank and the Administrative Agent (not
less than 2 Business Days in advance of the requested date of issuance,
amendment, renewal or extension) a letter of credit application on the
Issuing Bank's standard form and signed by a Financial Officer of the
Borrower requesting the issuance of a Letter of Credit, or identifying
the Letter of Credit to be amended, renewed or extended, and specifying
the date of issuance, amendment, renewal or extension, the date on
which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit,
the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend
such Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance,
20
amendment, renewal or extension of each Letter of Credit the Borrower
shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension, (i) the total Revolving
Credit Exposures shall not exceed the total Commitments and (ii) the LC
Exposure shall not exceed the LC Commitment.
(c) Expiration Date. No Letter of Credit shall (i) have an
original expiry date more than one year from the date of issuance
(provided that any such Letter of Credit may contain customary
"evergreen" provisions pursuant to which the expiry date is
automatically extended by a specific time period unless the Issuing
Bank gives notice to the beneficiary of such Letter of Credit at least
a specified time period prior to the expiry date then in effect) and
(ii) as originally issued or extended, have an expiry date extending
beyond the date that is five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of the Issuing Bank or the
Lenders, the Issuing Bank hereby grants to each Lender, and each Lender
hereby acquires from the Issuing Bank, a participation in such Letter
of Credit equal to such Lender's Applicable Percentage of the aggregate
amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the Issuing Bank, such Lender's Applicable
Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any
reason. Each Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters
of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of
a Default or reduction or termination of the Commitments, and that each
such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall
reimburse such LC Disbursement by paying to the Administrative Agent an
amount equal to such LC Disbursement not later than 12:00 noon,
(Charlotte, North Carolina time), on the date that such LC Disbursement
is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., (Charlotte, North Carolina time), on
such date, and otherwise such payment shall be made not later than
12:00 noon, (Charlotte, North Carolina time), on the Business Day
immediately following the day such notice is received by the Borrower.
Unless the Borrower shall immediately notify the Issuing Bank and the
Administrative Agent of its intent to otherwise reimburse the Issuing
Bank for an LC Disbursement, the Borrower shall be deemed to have
requested a Revolving Borrowing in the amount of the LC Disbursement as
provided in paragraph (f) below, the proceeds of which will be used to
satisfy its reimbursement obligation. If the LC Disbursement is not
reimbursed as provided above, the Administrative Agent shall notify
each Lender of the applicable LC Disbursement, the payment then due
from the Borrower in respect thereof and such
21
Lender's Applicable Percentage thereof. Promptly following receipt of
such notice, each Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from the Borrower, in the
same manner as provided in Section 2.06 with respect to Loans made by
such Lender (and Section 2.06 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Issuing Bank the amounts so received by it from the
Lenders. Promptly following receipt by the Administrative Agent of any
payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the Issuing Bank
or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Lenders and the
Issuing Bank as their interests may appear. Any payment made by a
Lender pursuant to this paragraph to reimburse the Issuing Bank for any
LC Disbursement (other than the funding of a Revolving Borrowing as
contemplated in paragraph (f) below) shall not constitute a Loan and
shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) Repayment with Revolving Loans. On any day on which the
Borrower shall have requested, or been deemed to have requested, a
Revolving Borrowing to reimburse an LC Disbursement, the Administrative
Agent shall give notice to the Lenders that a Revolving Borrowing has
been requested or deemed requested in connection with an LC
Disbursement, in which case a Revolving Borrowing comprised entirely of
ABR Loans (each such Borrowing, a "Mandatory Borrowing") shall be
immediately made (without giving effect to any termination of the
Commitments hereunder) ratably by the Lenders based on each Lender's
respective Applicable Percentage of the total Commitments (determined
before giving effect to any termination of the Commitments hereunder)
and the proceeds thereof shall be paid directly to the Administrative
Agent, for the benefit of the Issuing Bank, for application to the
applicable LC Disbursement. Each Lender hereby irrevocably agrees to
make its Revolving Loan immediately upon any such request or deemed
request on account of each Mandatory Borrowing in the amount and in the
manner specified in the preceding sentence and on the same date
notwithstanding (i) the amount of the Mandatory Borrowing may not
comply with the minimum amount for ABR Borrowings otherwise required
hereunder, (ii) whether any conditions specified in Section 4.02 are
then satisfied, (iii) whether a Default or Event of Default then
exists, (iv) failure of any such request or deemed request for an ABR
Borrowing to be made by the time otherwise required hereunder, (v) the
date of the Mandatory Borrowing or (vi) any reduction in the total
Commitments after any such Letter of Credit may have been drawn upon.
(g) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section
shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under
any and all circumstances whatsoever and irrespective of:
(i) any lack of validity or enforceability of any
Letter of Credit or this Credit Agreement, or any term or
provision therein;
22
(ii) any amendment or waiver of or any consent to
departure from all or any of the provisions of any Letter of
Credit or this Credit Agreement;
(iii) the existence of any claim, setoff, defense or
other right that the Borrower, any other party guaranteeing,
or otherwise obligated with, the Borrower, any Subsidiary or
other Affiliate thereof or any other Person may at any time
have against the beneficiary under any Letter of Credit, the
Issuing Bank, the Administrative Agent or any Lender or any
other Person, whether in connection with this Agreement or any
other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that
does not comply with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any
kind of the Issuing Bank, the Lenders, the Administrative
Agent or any other Person or any other event or circumstance
whatsoever, whether or not similar to any of the foregoing,
that might, but for the provisions of this Section, constitute
a legal or equitable discharge of the Borrower's obligations
hereunder.
provided that (i) the Borrower shall not be obligated to reimburse the Issuing
Bank for any payment or indemnify the Issuing Bank for any wrongful dishonor or
any other matter to the extent resulting from acts or omissions constituting
gross negligence or willful misconduct by the Issuing Bank, (ii) the Borrower
shall not be obligated to reimburse any Lender for any payment or indemnify any
Lender for any matter to the extent resulting from acts or omissions
constituting gross negligence or willful misconduct by such Lender and (iii) the
Lenders shall not be obligated to reimburse the Issuing Bank for any payment or
indemnify the Issuing Bank for any wrongful dishonor or any other matter to the
extent resulting from acts or omissions constituting gross negligence or willful
misconduct by the Issuing Bank.
Nothing in this Agreement shall be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Bank's failure to exercise the agreed standard of
care (as set forth below) in determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that the Issuing Bank shall have exercised the agreed
standard of care in the absence of gross negligence or willful misconduct on the
part of the Issuing Bank and if performed in accordance with the standards of
care specified in the Uniform Commercial Code of the State of New York and The
Uniform Customs and Practice for Documentary Credits.
23
(h) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing
Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and
whether the Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such
notice shall not relieve the Borrower of its obligation to reimburse
the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(i) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the
date that such LC Disbursement is reimbursed, at the rate per annum
then applicable to ABR Loans. Interest accrued pursuant to this
paragraph shall be for the account of the Issuing Bank, except that
interest accrued on and after the date of payment by any Lender
pursuant to paragraph (e) of this Section to reimburse the Issuing Bank
shall be for the account of such Lender to the extent of such payment.
(j) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor
Issuing Bank. The Administrative Agent shall notify the Lenders of any
such replacement of the Issuing Bank. At the time any such replacement
shall become effective, the Borrower shall pay all unpaid fees accrued
for the account of the replaced Issuing Bank pursuant to Section
2.11(c). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of
the Issuing Bank under this Agreement with respect to Letters of Credit
to be issued thereafter and (ii) references herein to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as
the context shall require. After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto and
shall continue to have all the rights and obligations of an Issuing
Bank under this Agreement with respect to Letters of Credit issued by
it prior to such replacement, but shall not be required to issue
additional Letters of Credit.
(k) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that the Borrower receives
notice from the Administrative Agent or the Required Lenders (or, if
the maturity of the Loans has been accelerated, Lenders with LC
Exposure representing greater than 50% of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this paragraph,
the Borrower shall deposit in an account with the Administrative Agent,
in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date
plus any accrued and unpaid interest and fees thereon; provided that
the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable,
without demand or other notice of any kind, upon the occurrence of any
Event of Default with
24
respect to the Borrower described in clause (h) or (i) of Article VII.
Such deposit shall be held by the Administrative Agent as collateral
for the payment and performance of the obligations of the Borrower
under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over
such account. Other than any income earned on the investment of such
deposits in Cash Equivalents, which investments the Administrative
Agent agrees to make at the Borrower's risk and expense, such deposits
shall not otherwise bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account
shall be applied by the Administrative Agent to reimburse the Issuing
Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such
time (including, without limitation, reimbursement of the Lenders with
LC Exposure), or, if the maturity of the Loans has been accelerated
(but subject to the consent of Lenders with LC Exposure representing
greater than 50% of the total LC Exposure), be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result
of the occurrence of an Event of Default, such amount (to the extent
not applied as aforesaid) shall be returned to the Borrower within two
Business Days after all Events of Default have been cured or waived.
SECTION 2.06 FUNDING OF REVOLVING BORROWINGS.
(a) Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately
available funds by 2:00 p.m. (Charlotte, North Carolina time), to the
account of the Administrative Agent most recently designated by it for
such purpose by notice to the Lenders; provided that Swingline Loans
shall be made as provided in Section 2.04. The Administrative Agent
will make such Loans available to the Borrower by promptly crediting
the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in Charlotte, North Carolina
and designated by the Borrower in the applicable Revolving Borrowing
Request.
(b) Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Revolving
Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Revolving Borrowing,
the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. In such event, if a Lender has not
in fact made its share of the applicable Revolving Borrowing available
to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount with interest thereon, for each day
from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Lender, the Federal Funds Effective
Rate or (ii) in the case of the Borrower, the interest rate applicable
to ABR Loans. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in
such Revolving Borrowing.
25
SECTION 2.07 INTEREST ELECTIONS.
(a) Each Revolving Borrowing initially shall be of the Type
specified in the applicable Revolving Borrowing Request and, in the
case of a Eurodollar Borrowing, shall have an initial Interest Period
as specified in such Revolving Borrowing Request. Thereafter, the
Borrower may elect to convert such Revolving Borrowing to a different
Type or to continue such Revolving Borrowing and, in the case of a
Eurodollar Borrowing, may elect Interest Periods therefore, all as
provided in this Section. The Borrower may elect different options with
respect to different portions of the affected Revolving Borrowing, in
which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Revolving Borrowing, and the
Loans comprising each such portion shall be considered a separate
Revolving Borrowing. This Section shall not apply to Swingline
Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by
the time that a Revolving Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Revolving Borrowing of
the Type resulting from such election to be made on the effective date
of such election. Each such telephonic Interest Election Request shall
be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election
Request signed by a Financial Officer of the Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section
2.02:
(i) the Revolving Borrowing to which such Interest
Election Request applies and, if different options are being
elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Revolving
Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified
for each resulting Revolving Borrowing);
(ii) the effective date of the election made pursuant
to such Interest Election Request, which shall be a Business
Day;
(iii) whether the resulting Revolving Borrowing is to
be an ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Revolving Borrowing is a
Eurodollar Borrowing, the Interest Period to be applicable
thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term "Interest
Period."
26
If any such Interest Election Request requests a Eurodollar Borrowing
but does not specify an Interest Period, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the
details thereof and of such Lender's portion of each resulting
Revolving Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such
Revolving Borrowing is repaid as provided herein, at the end of such
Interest Period such Revolving Borrowing shall be continued as a
Eurodollar Borrowing with an Interest Period of one month's duration.
Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so
long as an Event of Default is continuing (i) no outstanding Revolving
Borrowing may be converted to or continued as a Eurodollar Borrowing
and (ii) unless repaid, each Eurodollar Borrowing shall be converted to
an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.08 TERMINATION AND REDUCTION OF COMMITMENTS.
(a) Unless previously terminated, the Commitments shall
terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Commitments in whole or in part; provided that (i)
each reduction of the Commitments shall be in an aggregate amount not
less than $50,000,000 and integral multiples of $10,000,000 in excess
thereof and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.10, the Revolving Credit Exposures
would exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of
this Section at least three Business Days prior to the effective date
of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof.
Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments
delivered by the Borrower may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such
notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is
not satisfied. Any termination or reduction of the Commitments shall be
permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
27
SECTION 2.09 REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay (i) to
the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Revolving Loan and all interest, fees and
other amounts payable hereunder on the Maturity Date and (ii) to the
Swingline Lender, the then unpaid principal amount of each Swingline
Loan on the maturity thereof.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Type
thereof and the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder for the account of
the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be conclusive (absent
manifest error) evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Credit
Agreement.
(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the
order of such Lender and in a form approved by the Administrative Agent
and the Borrower. Thereafter, the Loans evidenced by such promissory
note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more
promissory notes in such form payable to the order of the payee named
therein.
SECTION 2.10 PREPAYMENT OF LOANS.
(a) The Borrower shall have the right at any time and from
time to time to prepay any Borrowing in whole or in part, without
premium or penalty, subject to Section 2.15 and subject to prior notice
in accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (A) in
the case of prepayment of a Eurodollar Borrowing, not later than 12:00
noon (Charlotte, North Carolina time), three Business Days before the
date of prepayment, (B) in the case of prepayment of an ABR Borrowing,
not later than 12:00 noon (Charlotte, North Carolina time), on the date
of prepayment or (C) in the case of prepayment of a Swingline Loan, not
later than
28
12:00 noon (Charlotte, North Carolina time), on the date of prepayment.
Each such notice shall be irrevocable and shall specify the prepayment
date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Commitments
as contemplated by Section 2.08, then such notice of prepayment may be
revoked if such notice of termination is revoked in accordance with
Section 2.08. Promptly following receipt of any such notice relating to
a Borrowing, the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Borrowing shall be in
an amount that would be permitted in the case of an advance of a
Borrowing of the same Type as provided in Section 2.02. Each prepayment
of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest
to the extent required by Section 2.12.
SECTION 2.11 FEES.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a facility fee, which shall accrue at the
Applicable Rate on the daily amount of the Commitment of such Lender
(whether used or unused) during the period from and including the
Closing Date to but excluding the date on which such Commitment
terminates; provided that, if such Lender continues to have any
Revolving Credit Exposure after its Commitment terminates, then such
facility fee shall continue to accrue on the daily amount of such
Lender's Revolving Credit Exposure from and including the date on which
its Commitment terminates to but excluding the date on which such
Lender ceases to have any Revolving Credit Exposure. Accrued facility
fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur after
the date hereof; provided that any facility fees accruing after the
date on which the Commitments terminate shall be payable on demand. All
facility fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a utilization fee equal to the Applicable
Rate in effect from time to time for each day on which the Commitment
Utilization Percentage exceeds 50%, which fee shall accrue on the daily
amount of the Used Commitment of such Lender for each Excess
Utilization Day during the period from and including the Closing Date
to but excluding the date on which such Lender's Commitment terminates;
provided that, if such Lender continues to have any Revolving Credit
Exposure after its Commitment terminates, then such utilization fee
shall continue to accrue on the daily amount of such Lender's Revolving
Credit Exposure for each Excess Utilization Day from and including the
date on which its Commitment terminates to but excluding the date on
which such Lender ceases to have any Revolving Credit Exposure. Accrued
utilization fees shall be payable in arrears on the last day of March,
June, September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur after
the date hereof; provided that any utilization fees accruing after the
date on which the Commitments terminate shall be payable on demand. All
utilization fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
29
(c) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at a rate per
annum equal to the Applicable Rate for Eurodollar Spreads (as defined
under "Applicable Rate") on the average daily amount of such Lender's
LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Closing Date
to but excluding the later of the date on which such Lender's
Commitment terminates and the date on which such Lender ceases to have
any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which
shall accrue at the rate of 0.125% per annum on the average daily
amount of the LC Exposure (excluding any portion thereof attributable
to unreimbursed LC Disbursements) during the period from and including
the Closing Date to but excluding the later of the date of termination
of the Commitments and the date on which there ceases to be any LC
Exposure, as well as the Issuing Bank's standard fees with respect to
the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and fronting
fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third
Business Day following such last day, commencing on the first such date
to occur after the Closing Date; provided that all such fees shall be
payable on the date on which the Commitments terminate and any such
fees accruing after the date on which the Commitments terminate shall
be payable on demand. Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be computed on
the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last
day).
(d) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times
separately agreed upon between the Borrower and the Administrative
Agent.
(e) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to the
Issuing Bank, in the case of fees payable to it) for distribution, in
the case of facility fees, utilization fees and participation fees, to
the Lenders. Fees paid shall not be refundable under any circumstances.
SECTION 2.12 INTEREST.
(a) The Loans comprising each ABR Borrowing shall bear
interest at a rate per annum equal to the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to the LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Rate.
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(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due (following the expiration of any grace
period specified in Article VII), whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest,
after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided above or (ii) in the case of any
other amount, 2% plus the rate applicable to ABR Loans as provided
above.
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan; provided that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Loan prior to the end of the
Availability Period), accrued interest on the principal amount repaid
or prepaid shall be payable on the date of such repayment or
prepayment, (iii) in the event of any conversion of any Eurodollar Loan
prior to the end of the current Interest Period therefore, accrued
interest on such Loan shall be payable on the effective date of such
conversion and (iv) all accrued interest shall be payable upon
termination of the Commitments.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on
the Prime Rate shall be computed on the basis of a year of 365 days (or
366 days in a leap year), and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding
the last day). The applicable Alternate Base Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
(f) If any Lender shall be required under the regulations of
the Board to maintain reserves with respect to liabilities or assets
consisting of, or including, Eurocurrency Liabilities (as defined in
Regulation D of the Board), the Borrower shall pay to the
Administrative Agent for the account of such Lender, additional
interest on the unpaid principal amount of each Eurodollar Loan made to
the Borrower by such Lender, from the date of such Loan until such Loan
is paid in full, at an interest rate per annum equal at all times
during the Interest Period for such Eurodollar Loan to the remainder
obtained by subtracting (i) the LIBO Rate for such Interest Period from
(ii) the rate obtained by multiplying LIBO Rate as referred to in
clause (i) above by the Statutory Reserve Rate applicable to such
Lender for such Interest Period. Such additional interest shall be
determined by such Lender and notified to the Borrower (with a copy to
the Administrative Agent) not later than five Business Days before the
next Interest Payment Date for such Eurodollar Loan, and such
additional interest so notified to the Borrower by any Lender shall be
payable to the Administrative Agent for the account of such Lender on
each Interest Payment Date for such Eurodollar Loan.
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SECTION 2.13 ALTERNATE RATE OF INTEREST.
If prior to the commencement of any Interest Period for a Eurodollar
Borrowing:
(a) the Administrative Agent reasonably determines (which
determination shall be conclusive absent manifest error) that adequate
and reasonable means do not exist for ascertaining the LIBO Rate for
such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the LIBO Rate for such Interest Period will not, in their
reasonable judgment, adequately and fairly reflect the cost to such
Lenders of making or maintaining their Loans included in such Revolving
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower
and the Lenders by telephone or telecopy as promptly as practicable
thereafter and, until the Administrative Agent notifies the Borrower
and the Lenders that the circumstances giving rise to such notice no
longer exist, (i) any Interest Election Request that requests the
conversion of any Revolving Borrowing to, or continuation of any
Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective,
and (ii) if any Revolving Borrowing Request requests a Eurodollar
Borrowing, such Revolving Borrowing shall be made as an ABR Borrowing;
provided that if the circumstances giving rise to such notice affect
only one Type of Revolving Borrowings, then the other Type of Revolving
Borrowings shall be permitted.
SECTION 2.14 INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by,
any Lender or the Issuing Bank (other than any reserves
included in the Statutory Reserve Rate); or
(ii) impose on any Lender or the Issuing Bank or the
London interbank market any other condition affecting this
Credit Agreement or Eurodollar Loans or any Letter of Credit
or participation therein;
and the result of any of the foregoing shall be to increase the cost
(except with respect to Excluded Taxes) to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to
make any such Loan) or to increase the cost (except with respect to
Excluded Taxes) to such Lender or the Issuing Bank of participating in,
issuing or maintaining any Letter of Credit or to reduce the amount of
any sum received or receivable (except to the extent caused by Excluded
Taxes) by such Lender or the Issuing Bank hereunder (whether of
principal, interest or otherwise) by an amount deemed by such Lender or
the Issuing Bank to be material, then the Borrower will pay to such
Lender or the Issuing Bank, as the case may be, such additional amount
or amounts as will compensate such Lender or the Issuing Bank, as the
case may be, for such additional costs incurred or reduction suffered.
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(b) If any Lender or the Issuing Bank reasonably determines
that any Change in Law regarding capital requirements has or would have
the effect of reducing the rate of return on such Lender's or the
Issuing Bank's capital or on the capital of such Lender's or the
Issuing Bank's holding company, if any, as a consequence of this Credit
Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the Issuing
Bank, to a level below that which such Lender or the Issuing Bank or
such Lender's or the Issuer Bank's holding company could have achieved
but for such Change in Law (taking into consideration such Lender's or
the Issuing Bank's policies and the policies of such Lender's or the
Issuing Bank's holding company with respect to capital adequacy), then
from time to time the Borrower will pay to such Lender or the Issuing
Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the
Issuing Bank or its holding company, as the case may be, as specified
in paragraph (a) or (b) of this Section and the method of calculating
such amounts, in reasonable detail, shall be delivered to the Borrower
and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the Issuing Bank, as the case may be, the amount shown
as due on any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Bank's right to
demand such compensation; provided that the Borrower shall not be
required to compensate a Lender or the Issuing Bank pursuant to this
Section for any increased costs or reductions incurred more than six
months prior to the date that such Lender or the Issuing Bank, as the
case may be, notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender's or the Issuing
Bank's intention to claim compensation therefore; provided further
that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the six-month period referred to above
shall be extended to include the period of retroactive effect thereof.
SECTION 2.15 BREAK FUNDING PAYMENTS.
In the event of (a) the payment of any principal of any Eurodollar Loan
other than on the last day of an Interest Period applicable thereto (including
as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice is
permitted to be revocable under Section 2.10(b) if such notice is revoked in
accordance herewith two Business Days or less before the specified effective
date), (d) the assignment of any Eurodollar
33
Loan other than on the last day of the Interest Period applicable thereto as a
result of a request by the Borrower pursuant to Section 2.18, then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and expense
(but not loss of profit) attributable to such event. In the case of a Eurodollar
Loan, the loss to any Lender attributable to any such event shall be deemed to
include an amount reasonably determined by such Lender to be equal to the
excess, if any, of (i) the amount of interest that such Lender would pay for a
deposit equal to the principal amount of such Loan for the period from the date
of such payment, conversion, failure or assignment to the last day of the then
current Interest Period for such Loan (or, in the case of a failure to borrow,
convert or continue, the duration of the Interest Period that would have
resulted from such borrowing, conversion or continuation) if the interest rate
payable on such deposit were equal to the LIBO Rate for such Interest Period,
over (ii) the amount of interest that such Lender would earn on such principal
amount for such period if such Lender were to invest such principal amount for
such period at the interest rate that would be bid by such Lender (or an
affiliate of such Lender) for dollar deposits from other banks in the eurodollar
market at the commencement of such period. A certificate of any Lender setting
forth any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.16 TAXES.
(a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if
the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent,
each Lender, and the Issuing Bank within 10 days after written demand
therefore, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may
be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority. A certificate as to the amount of
such payment or liability delivered to the Borrower by a Lender or the
Issuing Bank, or by the Administrative Agent on its own behalf or on
behalf of a Lender or the Issuing Bank, shall be conclusive absent
manifest error.
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(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the
Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Each Foreign Lender, on or prior to the date of its
execution and delivery of this Credit Agreement or on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender, as
applicable, shall provide the Borrower with any form or certificate
that is required by any taxing authority (including, if applicable, a
copy of Internal Revenue Service Forms W-9, W-8BEN or W-8ECI, as
appropriate, or any successor or other form prescribed by the Internal
Revenue Service), certifying that such Lender is exempt from or
entitled to a reduced rate of withholding taxes on payments pursuant to
this Credit Agreement. Thereafter, each such Lender shall provide
additional forms or certificates (i) to the extent a form or
certificate previously provided has been inaccurate, invalid or
otherwise ceases to be effective or (ii) as requested in writing by the
Borrower or the Administrative Agent. If any Foreign Lender fails to
comply with the provisions of this Section, the Borrower, may, as
required by law, deduct and withhold federal income tax payments from
payments to such Lender under this Credit Agreement. The obligation of
the Lenders under this Section shall survive the payment of all
obligations and the resignation or replacement of the Administrative
Agent.
(f) Any Lender claiming any additional amounts payable
pursuant to this Section 2.16 agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory
restrictions) to select or change the jurisdiction of its applicable
lending office if the making of such a selection or change would avoid
the need for, or reduce the amount of, any such additional amounts that
may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise economically disadvantageous to such Lender.
(g) If any Lender or the Administrative Agent, as the case may
be, obtains a refund of any Tax for which payment has been made
pursuant to this Section 2.16, which refund in the good faith judgment
of such Lender or the Administrative Agent, as the case may be, (and
without any obligation to disclose its tax records) is allocable to
such payment made under this Section 2.16, the amount of such refund
(together with any interest received thereon and reduced by reasonable
costs incurred in obtaining such refund) promptly shall be paid to the
Borrower to the extent payment has been made in full by the Borrower
pursuant to this Section 2.16.
SECTION 2.17 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS.
(a) The Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, fees or reimbursement
of LC Disbursements, or under Section 2.14, 2.15 or 2.16, or otherwise)
prior to 1:00 P.M. (Charlotte, North Carolina time), on the date when
due, in immediately available funds, without set-off or
35
counterclaim. Any amounts received after such time on any date may, in
the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 000 Xxxxx Xxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx, except payments to be made directly to the Issuing Bank
as expressly provided herein and except that payments pursuant to
Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any
payment hereunder shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day,
and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of
principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, to pay interest and
fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such
parties, and (ii) second, to pay principal and unreimbursed LC
Disbursements then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal and unreimbursed LC
Distributions then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of its Loans or participations in LC
Disbursements resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Loans and participations in
LC Disbursements and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in
the Loans and participations in LC Disbursements of other Lenders to
the extent necessary so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Loans and
participations in LC Disbursements; provided that (i) if any such
participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this Credit
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as
to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
36
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing
Bank, as the case may be, hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount
due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with
interest thereon, for each day from and including the date such amount
is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.05(d) or (e), 2.06(a) or 2.17(d),
then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received
by the Administrative Agent for the account of such Lender to satisfy
such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.18 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) If any Lender requests compensation under Section 2.14, or
if the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to
Section 2.16, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another
of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be,
in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be economically
disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or
if the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to
Section 2.16, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender
to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all its
interests, rights and obligations under this Credit Agreement to an
assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (i)
the Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld,
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in
37
LC Disbursements, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts) and (iii) in the case of
any such assignment resulting from a claim for compensation under
Section 2.14 or payments required to be made pursuant to Section 2.16,
such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment
and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 3.01 ORGANIZATION; POWERS.
Each of the Borrower and its Subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 3.02 AUTHORIZATION; ENFORCEABILITY.
The Transactions are within the Borrower's corporate powers and have
been duly authorized by all necessary corporate and, if required, shareholder
action. This Credit Agreement and each promissory note, if any, has been duly
executed and delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.03 GOVERNMENTAL APPROVALS; NO CONFLICTS.
The Transactions (a) do not require any material consent or approval
of, registration or filing with, or any other action by, any Governmental
Authority, except such as have been obtained or made and are in full force and
effect, (b) will not violate any applicable law or regulation or the charter,
by-laws or other organizational documents of the Borrower or any of its
Subsidiaries or any order of any Governmental Authority, (c) will not violate or
result in a default under any material indenture, agreement or other instrument
binding upon the Borrower or any of its Subsidiaries or any of their respective
assets, or give rise to a right thereunder to require any payment to be made by
the Borrower or any of its Subsidiaries, and (d) will not result in the creation
or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
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SECTION 3.04 FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(a) The Borrower has heretofore furnished to the Lenders (i)
its consolidated balance sheet and statements of operations,
shareholders' equity and cash flows as of and for the fiscal year ended
April 27, 2001, reported on by PricewaterhouseCoopers LLP, independent
public accountants, and (ii) its consolidated balance sheet and
statements of operations and cash flows as of and for the fiscal
quarters ended July 27, 2001 and October 26, 2001, signed by its chief
financial officer. Such financial statements present fairly, in all
material respects, the financial position and results of operations and
cash flows of the Borrower and its consolidated Subsidiaries as of such
dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the
statements referred to in clause (ii) above.
(b) There has been no material adverse change in the business,
assets, operations, or financial condition of the Borrower and its
Subsidiaries, taken as a whole, from those disclosed in the Borrower's
Form 10-K for the fiscal year ended April 27, 2001, other than as
disclosed in the Borrower's quarterly report on Form 10-Q for its
fiscal quarters ending on July 27, 2001 and October 26, 2001 and the
Borrower's current report on Form 8-K dated September 5, 2001 and the
amendment to such Form 8-K dated November 13, 2001, each as filed with
the SEC prior to the date hereof.
SECTION 3.05 PROPERTIES.
(a) Each of the Borrower and its Subsidiaries has good title
to, or valid leasehold interests in, all its real and personal property
material to its business, except for minor defects in title that do not
interfere with its ability to conduct its business as currently
conducted or to utilize such properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and
other intellectual property material to its business, and the use
thereof by the Borrower and its Subsidiaries does not infringe upon the
rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.06 LITIGATION AND ENVIRONMENTAL MATTERS.
(a) There are no actions, suits or proceedings by or before
any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower
or any of its Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the
Disclosed Matters) or (ii) which in any manner draws into question the
validity or enforceability of this Credit Agreement.
39
(b) Except for the Disclosed Matters or except with respect to
any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither
the Borrower nor any of its Subsidiaries (i) has failed to comply with
any Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii)
has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv)
knows of any basis for any Environmental Liability.
(c) Since the date of this Credit Agreement, there has been no
change in the status of the Disclosed Matters that, individually or in
the aggregate, has resulted in, or could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.07 COMPLIANCE WITH LAWS AND AGREEMENTS.
(a) Each of the Borrower and its Subsidiaries is in compliance
with all indentures, agreements and other instruments binding upon it
or its property, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. No Default has occurred and is continuing.
(b) Neither the Borrower nor any Subsidiary is in violation of
any law, rule or regulation, or in default with respect to any
judgment, writ, injunction or decree of any Governmental Authority,
where such violation or default would be reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.08 INVESTMENT AND HOLDING COMPANY STATUS.
Neither the Borrower nor any of its Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.09 TAXES.
Each of the Borrower and its Subsidiaries has timely filed or caused to
be filed all Tax returns and reports required to have been filed (taking into
account any extensions granted by the applicable taxing authority) and has paid
or caused to be paid all Taxes required to have been paid by it, except (a)
Taxes that are being contested in good faith by appropriate proceedings and for
which the Borrower or such Subsidiary, as applicable, has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10 ERISA.
No ERISA Event has occurred or is reasonably expected to occur that,
when taken together with all other such ERISA Events for which liability is
reasonably expected to occur, could reasonably be expected to result in a
40
Material Adverse Effect. The present value of all accumulated benefit
obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed by more
than $100,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $100,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11 DISCLOSURE.
The Borrower has disclosed (which disclosure includes all filings by
the Borrower pursuant to the Securities Exchange Act of 1934) to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished in writing by or on behalf of the Borrower to the
Administrative Agent or any Lender for use specifically in connection with the
negotiation of this Credit Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.12 FEDERAL REGULATIONS.
No part of the proceeds of any Loans will be used in any transaction or
for any purpose which violates the provisions of Regulation T, U or X of the
Board of Governors of the Federal Reserve System, as now and from time to time
hereafter in effect. If requested by any Lender or the Administrative Agent, the
Borrower will furnish to the Administrative Agent and each Lender a statement to
the foregoing effect in conformity with the requirements of Form FR U-1 referred
to in said Regulation U.
SECTION 3.13 PURPOSE OF LOANS.
The proceeds of the Loans and Letters of Credit shall be used to (i)
refinance the Existing Credit Agreement and (ii) finance any lawful general
corporate purpose, including acquisitions, and working capital.
SECTION 3.14 SUBSIDIARIES AND SIGNIFICANT SUBSIDIARIES.
Set forth on Schedule 3.14 is a complete and accurate list of all
Subsidiaries and all Significant Subsidiaries as of the Closing Date.
41
ARTICLE IV
CONDITIONS
SECTION 4.01 CLOSING CONDITIONS.
This Credit Agreement shall become effective on the date on which each
of the following conditions is satisfied (or waived in accordance with Section
9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this Credit
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Credit Agreement) that
such party has signed a counterpart of this Credit Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion or opinions (addressed to the Administrative Agent and
the Lenders and dated the Closing Date) of (i) Xxxxxxxxxxx & Xxxxx,
P.A., counsel for the Borrower and the Guarantors, (ii) Xxxxxxxx &
Xxxxxxxx, special counsel for the Borrower and the Guarantors, (iii)
Xxxxxxxxx, Daily, Xxxxxxx & XxXxx, special counsel for the Borrower and
the Guarantors and (iv) of Senior Legal Counsel to the Borrower and the
Guarantors, and covering such other matters relating to the Borrower,
the Guarantors, this Credit Agreement or the Transactions as the
Required Lenders shall reasonably request. The Borrower hereby requests
such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of the Borrower and each of the Guarantors, the authorization
of the Transactions and any other legal matters relating to the
Borrower, the Guarantors, this Agreement or the Transactions, all in
form and substance satisfactory to the Administrative Agent and its
counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by the President, a Vice
President or a Financial Officer of the Borrower, confirming compliance
with the conditions set forth in paragraphs (a) and (b) of Section
4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Closing Date,
including, without limitation the fees set forth in the Fee Letter and,
to the extent invoiced, the reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
(f) The commitments under the Existing Credit Agreement shall
have been terminated and all amounts owing thereunder shall have been
paid.
42
SECTION 4.02 EACH CREDIT EVENT.
The obligation of each Lender to make a Loan on the occasion
of any Revolving Borrowing, the Issuing Bank to issue, amend, renew or
extend any Letter of Credit and the Swingling Lender to make a
Swingline Loan on the occasion of any Swingline Borrowing is subject to
the satisfaction of the following conditions:
(a) The representations and warranties of the Borrower set
forth in this Credit Agreement shall be true and correct in all
material respects on and as of the date of, and after giving effect to,
such Borrowing and after giving effect to, the issuance, amendment,
renewal or extension of such Letter of Credit, as applicable; provided,
that, the representations and warranties contained in Sections 3.04(b),
3.06, 3.07(a) and 3.10 shall be deemed made, and shall be required to
be true and correct, only on the Closing Date.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been paid
in full, and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 5.01 FINANCIAL STATEMENTS AND OTHER INFORMATION.
The Borrower will furnish to the Administrative Agent (with copies for
each Lender):
(a) within 100 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related statements
of operations, shareholders' equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by
PricewaterhouseCoopers LLP or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
43
GAAP (the Lenders agree that the Borrower's obligations under this
paragraph (a) will be satisfied in respect of any fiscal year by
delivery to the Administrative Agent, with copies for each Lender,
within 100 days after the end of such fiscal year of its annual report
for such fiscal year on Form 10-K as filed with the SEC);
(b) within 55 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower (including the
fiscal quarter ending on January 25, 2002), its consolidated balance
sheet and related statements of operations and cash flows as of the end
of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures
for the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all
certified by one of its Financial Officers as presenting fairly in all
material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied, subject to normal
year-end audit adjustments and the absence of footnotes (the Lenders
agree that the Borrower's obligations under this paragraph (b) will be
satisfied in respect of any fiscal quarter by delivering to the
Administrative Agent, with copies for each Lender, within 55 days after
the end of such fiscal quarter of its quarterly report for such fiscal
quarter on Form 10-Q as filed with the SEC);
(c) concurrently with any delivery of financial statements
under paragraph (a) or (b) above, a certificate of a Financial Officer
of the Borrower (i) certifying as to whether a Default has occurred
and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with
Section 6.01 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04(a)(i) and, if any such
change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) promptly after the same become publicly available or upon
transmission or receipt thereof, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or
any Subsidiary with the SEC, or any Governmental Authority succeeding
to any or all of the functions of the SEC, or with any national
securities exchange, or distributed by the Borrower to its shareholders
generally, as the case may be, provided that, with respect to materials
filed with any national securities exchange, only material filings
shall be required to be delivered pursuant to this paragraph (d); and
(e) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the
terms of this Credit Agreement, as the Administrative Agent or any
Lender (acting through the Administrative Agent) may reasonably
request.
44
SECTION 5.02 NOTICES OF MATERIAL EVENTS.
The Borrower will furnish to the Administrative Agent and each Lender
prompt written notice of, but in any event not later than five Business Days
after, the following:
(a) the occurrence of any Default;
(b) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in
an aggregate amount exceeding $100,000,000;
(c) the non-compliance with any contractual obligation or
requirement of law that is not currently being contested in good faith
by appropriate proceedings if all such non-compliance in the aggregate
could reasonably be expected to have a Material Adverse Effect;
(d) the revocation of any license, permit, authorization,
certificate, qualification or accreditation of the Borrower or any
Subsidiary by any Governmental Authority if all such revocations in the
aggregate could reasonably be expected to have a Material Adverse
Effect;
(e) a change in rating for the Index Debt by either Xxxxx'x or
S & P; and
(f) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
statement of a Financial Officer or other executive officer of the Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
SECTION 5.03 EXISTENCE; CONDUCT OF BUSINESS.
The Borrower will, and will cause each of its Subsidiaries to, do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation, dissolution or stock
or asset sale permitted under Section 6.04.
SECTION 5.04 PAYMENT OF OBLIGATIONS.
The Borrower will, and will cause each of its Subsidiaries to, pay its
obligations, including Tax liabilities, that, if not paid, could result in a
Material Adverse Effect before the same shall become delinquent or in default,
except where (a) the validity or amount thereof is being contested in good faith
by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on
its books adequate reserves with respect thereto in accordance with GAAP and (c)
the failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
45
SECTION 5.05 MAINTENANCE OF PROPERTIES; INSURANCE.
The Borrower will, and will cause each of its Subsidiaries to, (a) keep
and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar
locations or maintain a system or systems of self-insurance or assumption of
risk which accords with the practices of similar businesses.
SECTION 5.06 BOOKS AND RECORDS; INSPECTION RIGHTS.
The Borrower will, and will cause each of its Subsidiaries to, keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of its Subsidiaries to,
permit any representatives designated by the Administrative Agent or any Lender,
upon reasonable prior notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all at
such reasonable times and as often as reasonably requested.
SECTION 5.07 COMPLIANCE WITH LAWS.
The Borrower will, and will cause each of its Subsidiaries to, comply
with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 5.08 USE OF PROCEEDS.
The proceeds of the Loans will be used for the purposes described in
Section 3.13. No part of the proceeds of any Loan will be used, whether directly
or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations U and X.
SECTION 5.09 MAINTENANCE OF ACCREDITATION, ETC.
The Borrower will preserve and maintain, and cause each of its
Subsidiaries to preserve and maintain, all licenses, permits, authorizations,
certifications and qualifications (including, without limitation, those
qualifications with respect to solvency and capitalization) required, except
where the failure to do so would not result in a Material Adverse Effect.
46
SECTION 5.10 ADDITIONAL SUBSIDIARY GUARANTORS.
The Borrower will cause each of its Significant Subsidiaries, whether
newly formed, after acquired or otherwise existing, to promptly become a
Guarantor hereunder by way of execution of a Joinder Agreement in the form of
Exhibit B.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrower covenants and agrees with the Lenders
that:
SECTION 6.01 CONSOLIDATED TANGIBLE NET WORTH.
The Consolidated Tangible Net Worth shall at all times be greater than
or equal to $1,040,400,000, increased by an amount equal to 100% of the Net Cash
Proceeds from any Equity Issuance occurring after the Closing Date.
SECTION 6.02 INDEBTEDNESS.
The Borrower will not, and will not permit any Subsidiary to, create,
incur, assume or permit to exist any other Indebtedness or liability on account
of borrowed money, represented by any notes, bonds, debentures or similar
obligations, or on account of the deferred purchase price of any property, or
any other deposits, advance or progress payments under contracts, except:
(a) Indebtedness arising or existing under this Credit
Agreement and the other Credit Documents;
(b) Indebtedness existing on the date hereof and set forth in
Schedule 6.02 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof;
(c) Indebtedness of the Borrower and its Subsidiaries incurred
after the Closing Date consisting of Capital Lease Obligations or
Indebtedness incurred to provide all or a portion of the purchase price
or cost of construction of an asset provided that (i) such Indebtedness
when incurred shall not exceed the purchase price or cost of
construction of such asset and (ii) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing;
(d) Indebtedness of any Subsidiary to the Borrower or any
other Subsidiary;
(e) Indebtedness secured by Liens to the extent permitted
under Section 6.03;
47
(f) other unsecured Indebtedness of the Borrower and its
Subsidiaries; provided that such Indebtedness is not senior in right of
payment to the payment of the Indebtedness arising or existing under
this Credit Agreement and the other Credit Documents.
SECTION 6.03 LIENS.
The Borrower will not, and will not permit any Subsidiary to, create,
incur, assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.03;
provided that (i) such Lien shall not apply to any other property or
asset of the Borrower or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such
Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as
the case may be and extensions, renewals and replacements thereof that
do not increase the outstanding principal amount thereof; and
(d) Liens not otherwise permitted under this Section securing
obligations in an aggregate amount not exceeding at any time 20% of
Consolidated Tangible Net Worth as at the end of the immediately
preceding fiscal quarter of the Borrower.
SECTION 6.04 FUNDAMENTAL CHANGES.
The Borrower will not, and will not permit any Subsidiary to, merge
into or consolidate with any other Person, or permit any other Person to merge
into or consolidate with it, or sell, transfer, lease or otherwise dispose of
(in one transaction or in a series of transactions) all or substantially all of
its assets, or all or substantially all of the stock of any of its Subsidiaries
(in each case, whether now owned or hereafter acquired), or liquidate or
dissolve, except that, if at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be continuing (i) any Person
may merge into the Borrower in a transaction in which the Borrower is the
surviving corporation, (ii) any Person, including any Affiliate, may merge with
any Subsidiary in a transaction in which the surviving entity is a Subsidiary,
(iii) any Subsidiary
48
may sell, transfer, lease or otherwise dispose of its assets or stock to the
Borrower or to another Subsidiary, (iv) any Subsidiary may liquidate or dissolve
or the Borrower or any Subsidiary may sell, transfer, lease or otherwise dispose
of the assets or stock of any Subsidiary if, in each case, the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders,
(v) the Borrower and its Subsidiaries may sell immaterial businesses, including
Subsidiaries, in the ordinary course of business and (vi) any Subsidiary formed
for the purpose of acquiring a Person or a minority interest in any Person may
merge into such Person.
SECTION 6.05 TRANSACTIONS WITH AFFILIATES.
The Borrower will not, and will not permit any of its Subsidiaries to,
sell, lease or otherwise transfer any property or assets to, or purchase, lease
or otherwise acquire any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except (a) in the ordinary
course of business at prices and on terms and conditions not less favorable to
the Borrower or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties, (b) transactions between or among the Borrower and
its Subsidiaries not involving any other Affiliates, (c) contributions to the
Medtronic Foundation in amounts consistent with past practices or (d) as
otherwise permitted by this Credit Agreement.
SECTION 6.06 RESTRICTIVE AGREEMENTS.
The Borrower will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into, incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon the
ability of the Borrower or any Subsidiary to xxxxx x xxxx on its properties or
assets whether now owned or hereafter acquired or the ability of any Subsidiary
to pay dividends or other distributions with respect to any shares of its
capital stock or to make or repay loans or advances to the Borrower or any other
Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions
imposed by law, rule, regulation or regulatory administrative agreement or
determination or by this Credit Agreement, and (ii) the foregoing shall not
apply to customary restrictions and conditions contained in agreements relating
to the sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder.
SECTION 6.07 BUSINESS ACTIVITY.
The Borrower will not, nor will it permit any Significant Subsidiary
to, alter the character of its business in any material respect from that
conducted as of the Closing Date.
SECTION 6.08 RESTRICTED PAYMENTS.
The Borrower will not, nor will it permit any Subsidiary to, directly
or indirectly, declare, order, make or set apart any sum for or pay any
Restricted Payment, except (a) to make dividends payable solely in the same
class of capital stock of such Person, (b) to make dividends or other
distributions payable to the Borrower (directly or indirectly through
Subsidiaries) and ratably to minority shareholders and (c) other distributions
in respect of the capital stock of such Person or the redemption, retirement,
49
purchase or other acquisition of the capital stock of such Person (or any
warrant, option or other rights with respect to any shares of capital stock (now
or hereafter outstanding) of such Person) if no Default has occurred and is
continuing or would result from such action.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect to any LC Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise (or any
Guarantor shall fail to pay on the Guaranty in respect of any of the
foregoing or in respect of any other Guaranty obligations thereunder);
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Credit Agreement, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of five Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any Subsidiary in or in connection with
this Credit Agreement or any amendment or modification hereof, or in
any report, certificate, financial statement or other document
furnished pursuant to or in connection with this Credit Agreement or
any amendment or modification hereof, shall prove to have been
incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.03 (with
respect to the Borrower's existence) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Credit Agreement
(other than those specified in clause (a), (b) or (d) of this Article),
and such failure shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent (given at the
request of any Lender) to the Borrower;
(f) the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become
due and payable (subject to any applicable grace periods or notice
requirements);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with the giving of notice if required) the holder
50
or holders of any Material Indebtedness or any trustee or agent on its
or their behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that this clause (g) shall
not apply to (i) secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness or (ii) the Indebtedness under this Agreement or the
364-Day Facility;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Significant Subsidiary or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Significant
Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i) the Borrower or any Significant Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Significant
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(j) an Event of Default shall occur and be continuing under
the 364-Day Facility;
(k) the Borrower or any Significant Subsidiary shall become
unable, admit in writing its inability to pay, or fail generally to pay
its debts as they become due;
(l) one or more judgments or decrees shall be rendered against
the Borrower, any Significant Subsidiary or any combination thereof and
the same shall not have been paid, vacated, discharged, stayed or
bonded pending appeal within 60 days from the entry thereof that
involves in the aggregate a liability (not paid or fully covered by
insurance) of $50,000,000 or more;
(m) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
51
(n) a Change in Control of the Borrower shall occur; or
(o) the Guaranty or any provision thereof shall cease to be in
full force and effect (other than in accordance with its terms) or any
Guarantor or any Person acting by or on behalf of any Guarantor shall
deny or disaffirm any Guarantor's obligations under the Guaranty;
then, and in every such event (other than an event with respect to the
Borrower described in clause (h) or (i) of this Article), and at any
time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take either or both of the following
actions, at the same or different times: (i) terminate the Commitments,
and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or
in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and
thereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and
payable immediately (and the Commitments shall terminate), without
presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; and in case of any event with
respect to the Borrower described in clause (h) or (i) of this Article,
the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
the Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or
52
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders or
in the absence of its own gross negligence or willful misconduct.
SECTION 8.02 NOTICE OF DEFAULT.
The Administrative Agent shall be deemed not to have knowledge of any
Default unless and until written notice thereof is given to the Administrative
Agent by the Borrower or a Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Credit Agreement,
(ii) the contents of any certificate, report or other document delivered
hereunder or in connection herewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein, (iv)
the validity, enforceability, effectiveness or genuineness of this Credit
Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
SECTION 8.03 RELIANCE BY ADMINISTRATIVE AGENT.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
SECTION 8.04 DELEGATION OF DUTIES.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
SECTION 8.05 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign as Administrative Agent upon 30
days' notice to the Lenders. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders which successor administrative agent shall
53
be consented to by the Borrower at all times other than during the existence of
an Event of Default (which consent of the Borrower shall not be unreasonably
withheld or delayed). If no successor administrative agent is appointed prior to
the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article and Section 9.03 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement. If no successor administrative
agent has accepted appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above.
SECTION 8.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY
ADMINISTRATIVE AGENT.
Each Lender acknowledges 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 credit
analysis and decision to enter into this Credit Agreement. Each Lender also
acknowledges 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 from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Credit
Agreement, any related agreement or any document furnished hereunder or
thereunder.
SECTION 8.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT.
Whether or not the transactions contemplated hereby are consummated,
the Lenders shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of the Borrower or any Guarantor and without
limiting the obligation of the Borrower or any Guarantor to do so), pro rata,
and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that no Lender shall
be liable for the payment to any Agent-Related Person of any portion of such
Indemnified Liabilities resulting from such Person's gross negligence or willful
misconduct; provided, however, that no action taken in accordance with the
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including attorney costs) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
54
this Credit Agreement, any other Credit Document, or any document contemplated
by or referred to herein, to the extent that the Administrative Agent is not
reimbursed for such expenses by or on behalf of the Borrower. The undertaking in
this Section shall survive termination of the Commitments, the payment of all
obligations hereunder and the resignation or replacement of the Administrative
Agent.
SECTION 8.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with the Borrower and each of the Guarantors and their
respective Affiliates as though Bank of America were not the Administrative
Agent or the Issuing Bank hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of
America or its Affiliates may receive information regarding the Borrower, any of
the Guarantors or their respective Affiliates (including information that may be
subject to confidentiality obligations in favor of such Person or such
Affiliate) and acknowledge that the Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Loans, Bank
of America shall have the same rights and powers under this Credit Agreement as
any other Lender and may exercise such rights and powers as though it were not
the Administrative Agent or the Issuing Bank, and the terms "Lender" and
"Lenders" include Bank of America in its individual capacity.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 NOTICES.
Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to the Borrower:
Medtronic, Inc.
000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000-0000,
Attention: Treasury Department, Mail Stop LC480
Telecopy No. (000) 000-0000
with a copy to:
Medtronic, Inc.
000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000-0000,
Attention: General Counsel, Mail Stop LC400
Telecopy No. (000) 000-0000
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(b) if to the Administrative Agent, Issuing Bank and/or
Swingline Lender (for notices regarding borrowings, payments,
conversions, fees, interest, and other administrative matter):
Bank of America, N.A.
Independence Center, 15th Floor
NC1-001-15-04, 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Agency Services - Xxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
(c) if to the Administrative Agent for all other notices
(including with respect to delivery of financial statements, compliance
certificates, Defaults and Events of Default, amendments, waivers and
modifications of the Credit Documents and assignments):
Bank of America, N.A.
Agency Management
0000 Xxxxxx Xxxxxx, XX0-000-00-00
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Bank of America, N. A.
Location Code: NC1-007-17-11
000 Xxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(d) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto
in accordance with the provisions of this Credit Agreement shall be
deemed to have been given on the date of receipt.
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SECTION 9.02 WAIVERS; AMENDMENTS.
(a) No failure or delay by the Administrative Agent, the
Issuing Bank or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or
power. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any
provision of this Credit Agreement or consent to any departure by the
Borrower or any Guarantor therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or issuance of a
Letter of Credit shall not be construed as a waiver of any Default,
regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the
time.
(b) Neither this Credit Agreement nor any provision hereof may
be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent with the
consent of the Required Lenders; provided that no such agreement shall
(i) increase the Commitment of any Lender without the written consent
of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender directly
affected thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Loan or LC Disbursement, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive
or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each
Lender directly affected thereby, (iv) change Section 2.17(b) or (c) in
a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) change any of
the provisions of this Section or the definition of "Required Lenders"
or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make
any determination or grant any consent hereunder, without the written
consent of each Lender, (vi) release all or substantially all of the
Guarantors from their obligations under this Credit Agreement, without
the written consent of each Lender or (vii) change or amend Section
2.04 without the consent of the Swingline Lender; provided further that
no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent or the Issuing Bank hereunder
without the prior written consent of the Administrative Agent or the
Issuing Bank, as the case may be.
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SECTION 9.03 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of outside
counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the
preparation and administration of this Credit Agreement or any
amendments, modifications or waivers of the provisions hereof (whether
or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by
the Issuing Bank in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder
and (iii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Issuing Bank or any Lender, including the
fees and disbursements of any outside counsel for the Administrative
Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with this Credit
Agreement, including its rights under this Section, or in connection
with the Loans made or Letters of Credit issued hereunder, including in
connection with any workout, restructuring or negotiations in respect
thereof.
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including the fees
and disbursements of any outside counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of this Credit
Agreement or any agreement or instrument contemplated hereby, the
performance by the parties hereto of their respective obligations
hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or
the actual or proposed use of the proceeds therefrom (including any
refusal by the Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto (all of the
foregoing, collectively, the "Indemnified Liabilities"); provided that
such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related
expenses are determined by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such
Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent or the Issuing
Bank under paragraph (a) or (b) of this Section, each Lender severally
agrees to pay to the Administrative Agent or the Issuing Bank as the
case may be, such Lender's Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against the Administrative
Agent or the Issuing Bank in its capacity as such.
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(d) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out
of, in connection with, or as a result of, this Credit Agreement or any
agreement or instrument contemplated hereby, the Transactions, any
Loan, Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 9.04 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Credit Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither
the Borrower nor any Guarantor may assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent
of each Lender (and any attempted assignment or transfer by the
Borrower or any Guarantor without such consent shall be null and void);
provided, however, that no such consent shall be required for any
transaction permitted under Section 6.04. Nothing in this Credit
Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the
Issuing Bank and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Credit Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Credit Agreement
(including all or a portion of its Commitment and the Loans at the time
owing to it); provided that (i) except in the case of an assignment to
a Lender, an Affiliate of a Lender or an Approved Fund with respect
thereto, each of the Borrower and the Administrative Agent (and, in the
case of an assignment of all or a portion of a Commitment or any
Lender's obligations in respect of its LC Exposure, the Issuing Bank)
must give their prior written consent to such assignment (which consent
shall not be unreasonably withheld), (ii) except in the case of an
assignment to a Lender, an Affiliate of a Lender, an Approved Fund with
respect thereto or an assignment of the entire remaining amount of the
assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than
$5,000,000, except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment, unless each of the
Borrower and the Administrative Agent otherwise consent and, after
giving effect to such assignment, the assigning Lender and its
59
Affiliates and the Approved Funds with respect to such Lender shall
have a Commitment of at least $5,000,000 unless each of the Borrower
and the Administrative Agent otherwise consents, (iii) each partial
assignment shall be made as an assignment of a proportionate part of
all the assigning Lender's rights and obligations under this Credit
Agreement, (iii) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, (iv) such
assigning Lender shall simultaneously assign an identical percentage of
the loans and commitments of such Lender under the 364-Day Facility to
such assignee, and (v) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire;
provided further that any consent of the Borrower otherwise required
under this paragraph shall not be required if an Event of Default has
occurred and is continuing. Upon acceptance and recording pursuant to
paragraph (d) of this Section, from and after the effective date
specified in each Assignment and Acceptance, the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Acceptance, have the rights and obligations of a
Lender under this Credit Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Credit
Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Credit
Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16
and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Credit Agreement that does not comply with this
paragraph shall be treated for purposes of this Credit Agreement as a
sale by such Lender of a participation in such rights and obligations
in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in
Charlotte, North Carolina a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount
of the Loans and LC Disbursements owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive (absent manifest error), and the Borrower,
the Administrative Agent, the Issuing Bank and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Credit
Agreement, notwithstanding notice to the contrary.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section,
the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Credit Agreement
unless it has been recorded in the Register as provided in this
paragraph.
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(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or
more banks or other entities (a "Participant") in all or a portion of
such Lender's rights and obligations under this Credit Agreement
(including all or a portion of its Commitment and the Loans owing to
it); provided that (i) such Lender's obligations under this Credit
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent, the
Issuing Bank and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Credit Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Credit
Agreement and to approve any amendment, modification or waiver of any
provision of this Credit Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent
of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of
Sections 2.14, 2.15 and 2.16 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b)
of this Section.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 than the applicable Lender would
have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such
Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.16 unless the Borrower is
notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with
Section 2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Credit
Agreement to secure obligations of such Lender, including any such
pledge or assignment to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or substitute
any such assignee for such Lender as a party hereto.
(h) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding
vehicle (an "SPC") of such Granting Lender, identified as such in
writing from time to time by the Granting Lender to the Administrative
Agent and the Borrower, the option to provide to the Borrower all or
any part of any Loan that such Granting Lender would otherwise be
obligated to make to the Borrower pursuant to Section 2.01; provided
that (i) nothing herein shall constitute a commitment to make any Loan
by any SPC and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting
Lender shall be obligated to make such Loan pursuant to the terms
hereof. The making of a Loan by an SPC hereunder shall utilize the
61
Commitment of the Granting Lender to the same extent, and as if, such
Loan were made by the Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any payment under this Credit Agreement
for which a Lender would otherwise be liable, for so long as, and to
the extent, the related Granting Lender makes such payment. In
furtherance of the foregoing, each party hereto hereby agrees that,
prior to the date that is one year and one day after the payment in
full of all outstanding senior indebtedness of any SPC, it will not
institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or similar proceedings under the laws of the
United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 9.04 or in Section
9.12, any SPC may (i) with notice to, but without the prior written
consent of, the Borrower or the Administrative Agent and without paying
any processing fee therefor, assign all or a portion of its interests
in any Loans to its Granting Lender or to any financial institutions
providing liquidity and/or credit facilities to or for the account of
such SPC to fund the Loans made by such SPC or to support the
securities (if any) issued by such SPC to fund such Loans and (ii)
disclose on a confidential basis any non-public information relating to
its Loans to any rating agency, commercial paper dealer or provider of
a surety, guarantee or credit or liquidity enhancement to such SPC.
SECTION 9.05 SURVIVAL.
All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments delivered in
connection with or pursuant to this Credit Agreement shall be considered to have
been relied upon by the other parties hereto and shall survive the execution and
delivery of this Credit Agreement and the making of any Loans and issuance of
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Credit Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Credit Agreement or any provision hereof.
SECTION 9.06 COUNTERPARTS; INTEGRATION; EFFECTIVENESS.
This Credit Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. This Credit Agreement and any separate letter agreements with respect
to fees payable to the Administrative Agent constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 4.01, this Credit Agreement shall
62
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Credit Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Credit
Agreement.
SECTION 9.07 SEVERABILITY.
Any provision of this Credit Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the remaining provisions
hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08 RIGHT OF SETOFF.
If an Event of Default shall have occurred and be continuing, each
Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the credit or the
account of the Borrower against any of and all the obligations of the Borrower
now or hereafter existing under this Credit Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Credit Agreement and although such obligations may be unmatured. The rights of
each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.09 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
(a) This Credit Agreement shall be construed in accordance
with and governed by the law of the State of New York.
(b) Each of the Borrower and the Guarantors hereby irrevocably
and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York
sitting in New York County and of the United States District Court of
the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Credit Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may
be heard and determined in such New York State court or, to the extent
permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Credit
Agreement shall affect any right that the Administrative Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Credit Agreement against the Borrower or
any Guarantor or their respective properties in the courts of any
jurisdiction.
63
(c) Each of the Borrower and the Guarantors hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or
relating to this Credit Agreement in any court referred to in paragraph
(b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in
any such court.
(d) Each party to this Credit Agreement irrevocably consents
to service of process in the manner provided for notices in Section
9.01. Nothing in this Credit Agreement will affect the right of any
party to this Credit Agreement to serve process in any other manner
permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 HEADINGS.
Article and Section headings and the Table of Contents used herein are
for convenience of reference only, are not part of this Credit Agreement and
shall not affect the construction of, or be taken into consideration in
interpreting, this Credit Agreement.
SECTION 9.12 CONFIDENTIALITY.
Each of the Administrative Agent, the Issuing Bank and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates' and its
Approved Funds' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent, and only to the extent, required by applicable laws or regulations
or by any subpoena or similar legal process, provided that the Person required
64
to disclose such information shall take reasonable efforts (at Borrower's
expense) to ensure that any Information so disclosed shall be afforded
confidential treatment, (d) to any other party to this Credit Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Credit Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Credit Agreement, (g) with the consent of the Borrower or (h) to the
extent such Information (i) becomes publicly available other than as a result of
a breach of this Section or (ii) becomes available to the Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential basis from a source other
than the Borrower who is not, to the knowledge of the Administrative Agent, the
Issuing Bank or such Lender, under an obligation of confidentiality to Borrower
with respect to such Information. For the purposes of this Section,
"Information" means all information received from the Borrower relating to the
Borrower or its business, other than any such information that is available to
the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by the Borrower; provided that, in the case of
information received from the Borrower after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
ARTICLE X
GUARANTY
SECTION 10.1 THE GUARANTY.
In order to induce the Lenders and the Issuing Bank to enter into this
Credit Agreement and the other Credit Documents and to extend credit hereunder
and in recognition of the direct benefits to be received by the Guarantors from
the Borrowings and Letters of Credit hereunder, each of the Guarantors hereby
agrees with the Administrative Agent and the Lenders as follows: the Guarantor
hereby unconditionally and irrevocably jointly and severally guarantees as
primary obligor and not merely as surety the full and prompt payment when due,
whether upon maturity, by acceleration or otherwise, of any and all obligations
of the Borrower to the Administrative Agent, the Issuing Bank and the Lenders.
If any or all of the obligations of the Borrower to the Administrative Agent,
the Issuing Bank and the Lenders becomes due and payable hereunder, each
Guarantor unconditionally promises to pay such indebtedness to the
Administrative Agent, the Issuing Bank and the Lenders, on order, or demand,
together with any and all reasonable expenses which may be incurred by the
Administrative Agent, the Issuing Bank or the Lenders in collecting any of the
obligations.
Notwithstanding any provision to the contrary contained herein, to the
extent the obligations of a Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or transfers)
then the obligations of each such Guarantor hereunder shall be limited to the
maximum amount that is permissible under applicable law (whether federal or
state).
65
SECTION 10.2 BANKRUPTCY.
Additionally, each of the Guarantors unconditionally and irrevocably
guarantees jointly and severally the payment of any and all indebtedness of the
Borrower to the Administrative Agent, the Issuing Bank and Lenders whether or
not due or payable by the Borrower upon the occurrence of any of the Event of
Default specified in Article VII, subsection (i), and unconditionally promises
to pay such obligations to the Administrative Agent for the account of itself,
the Issuing Bank and the Lenders, or order, on demand, in lawful money of the
United States. Each of the Guarantors further agrees that to the extent that the
Borrower or a Guarantor shall make a payment or a transfer of an interest in any
property to the Administrative Agent or any Lender, which payment or transfer or
any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, or otherwise is avoided, and/or required to be repaid to the
Borrower or a Guarantor, the estate of the Borrower or a Guarantor, a trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then to the extent of such avoidance or
repayment, the obligation or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if said payment had not been
made.
SECTION 10.3 NATURE OF LIABILITY.
The liability of each Guarantor hereunder is exclusive and independent
of any security for or other guaranty of the indebtedness of the Borrower
whether executed by any such Guarantor, any other guarantor or by any other
party, and no Guarantor's liability hereunder shall be affected or impaired by
(a) any direction as to application of payment by the Borrower or by any other
party, or (b) any other continuing or other guaranty, undertaking or maximum
liability of a guarantor or of any other party as to the indebtedness of the
Borrower, or (c) any payment on or in reduction of any such other guaranty or
undertaking, or (d) any dissolution, termination or increase, decrease or change
in personnel by the Borrower, or (e) any payment made to the Administrative
Agent or the Lenders on the indebtedness which the Administrative Agent or such
Lenders repay the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
each of the Guarantors waives any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding.
SECTION 10.4 INDEPENDENT OBLIGATION.
The obligations of each Guarantor hereunder are independent of the
obligations of any other guarantor or the Borrower, and a separate action or
actions may be brought and prosecuted against each Guarantor whether or not
action is brought against any other guarantor or the Borrower and whether or not
any other Guarantor or the Borrower is joined in any such action or actions.
66
SECTION 10.5 AUTHORIZATION.
Each of the Guarantors authorizes the Administrative Agent, the Issuing
Bank and each Lender without notice or demand (except as shall be required by
applicable statute and cannot be waived), and without affecting or impairing its
liability hereunder, from time to time to (a) renew, compromise, extend,
increase, accelerate or otherwise change the time for payment of, or otherwise
change the terms of the indebtedness or any part thereof in accordance with this
Credit Agreement, including any increase or decrease of the rate of interest
thereon, (b) take and hold security from any guarantor or any other party for
the payment of this Guaranty or the indebtedness and exchange, enforce waive and
release any such security, (c) apply such security and direct the order or
manner of sale thereof as the Administrative Agent and the Lenders in their
discretion may determine and (d) release or substitute any one or more
endorsers, guarantors, the Borrower or other obligors.
SECTION 10.6 RELIANCE.
It is not necessary for the Administrative Agent, the Issuing Bank or
the Lenders to inquire into the capacity or powers of the Borrower or the
officers, directors, members, partners or agents acting or purporting to act on
its behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
SECTION 10.7 WAIVER.
(a) Each of the Guarantors waives any right (except as shall
be required by applicable statute and cannot be waived) to require the
Administrative Agent, the Issuing Bank or any Lender to (i) proceed
against the Borrower, any other guarantor or any other party, (ii)
proceed against or exhaust any security held from the Borrower, any
other guarantor or any other party, or (iii) pursue any other remedy in
the Administrative Agent's, the Issuing Bank's or any Lender's power
whatsoever. Each of the Guarantors waives any defense based on or
arising out of any defense of the Borrower, any other guarantor or any
other party other than payment in full of the indebtedness, including
without limitation any defense based on or arising out of the
disability of the Borrower, any other guarantor or any other party, or
the unenforceability of the indebtedness or any part thereof from any
cause, or the cessation from any cause of the liability of the Borrower
other than payment in full of the indebtedness. The Administrative
Agent, the Issuing Bank or any of the Lenders may, at their election,
foreclose on any security held by the Administrative Agent, the Issuing
Bank or a Lender by one or more judicial or nonjudicial sales, whether
or not every aspect of any such sale is commercially reasonable (to the
extent such sale is permitted by applicable law), or exercise any other
right or remedy the Administrative Agent, the Issuing Bank or any
Lender may have against the Borrower or any other party, or any
security, without affecting or impairing in any way the liability of
any Guarantor hereunder except to the extent the indebtedness has been
paid. Each of the Guarantors waives any defense arising out of any such
election by the Administrative Agent, the Issuing Bank or any of the
Lenders, even though such election operates to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of the
Guarantors against the Borrower or any other party or any security.
67
(b) Each of the Guarantors waives all presentments, demands
for performance, protests and notices, including without limitation
notices of nonperformance, notice of protest, notices of dishonor,
notices of acceptance of this Guaranty, and notices of the existence,
creation or incurring of new or additional indebtedness. Each Guarantor
assumes all responsibility for being and keeping itself informed of the
Borrower's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the indebtedness
and the nature, scope and extent of the risks which such Guarantor
assumes and incurs hereunder, and agrees that none of the
Administrative Agent, the Issuing Bank and the Lenders shall have any
duty to advise such Guarantor of information known to it regarding such
circumstances or risks.
(c) Each of the Guarantors hereby agrees it will not exercise
any rights of subrogation which it may at any time otherwise have as a
result of this Guaranty (whether contractual, under Section 509 of the
U.S. Bankruptcy Code, or otherwise) to the claims of the Administrative
Agent, the Issuing Bank and the Lenders against the Borrower or any
other guarantor of the indebtedness of the Borrower owing to the
Administrative Agent, the Issuing Bank and the Lenders (collectively,
the "Other Parties") and all contractual, statutory or common law
rights of reimbursement, contribution or indemnity from any Other Party
which it may at any time otherwise have as a result of this Guaranty
until such time as the Loans and the reimbursement obligations in
respect of LC Disbursements hereunder shall have been paid and the
Commitments have been terminated and no Letters of Credit are
outstanding. Each of the Guarantors hereby further agrees not to
exercise any right to enforce any other remedy which the Administrative
Agent, the Issuing Bank and the Lenders now have or may hereafter have
against any Other Party, any endorser or any other guarantor of all or
any part of the indebtedness of the Borrower and any benefit of, and
any right to participate in, any security or collateral given to or for
the benefit of the Issuing Bank and the Lenders to secure payment of
the indebtedness of the Borrower until such time as the Loans and the
reimbursement obligations in respect of LC Disbursements hereunder
shall have been paid and the Commitments have been terminated and no
Letters of Credit are outstanding.
SECTION 10.8 LIMITATION ON ENFORCEMENT.
The Lenders and the Issuing Bank agree that this Guaranty may be
enforced only by the action of the Administrative Agent acting upon the
instructions of the Required Lenders and that none of the Lenders and the
Issuing Bank shall have any right individually to seek to enforce or to enforce
this Guaranty, it being understood and agreed that such rights and remedies may
be exercised by the Administrative Agent for the benefit of itself, the Issuing
Bank and the Lenders under the terms of this Credit Agreement. The
Administrative Agent, the Issuing Bank and the Lenders further agree that this
Guaranty may not be enforced against any director, officer, employee or
stockholder or other equityholder of the Guarantors.
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SECTION 10.9 CONFIRMATION OF PAYMENT.
The Administrative Agent, the Issuing Bank and the Lenders will, upon
request after payment of the indebtedness and obligations which are the subject
of this Guaranty and termination of the Commitments relating thereto and the
expiration or the termination of all Letters of Credit, confirm to the Borrower,
the Guarantors or any other Person that such indebtedness and obligations have
been paid and the Commitments relating thereto terminated, subject to the
provisions of Section 10.2.
69
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written
BORROWER: MEDTRONIC, INC,
-------- a Minnesota corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Vice-President and Chief
Financial Officer
----------------------------------
GUARANTORS: MEDTRONIC MINIMED, INC.,
---------- a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Vice-President and Chief
Financial Officer
----------------------------------
MEDTRONIC INTERNATIONAL, LTD,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Vice-President and Chief
Financial Officer
----------------------------------
MEDTRONIC AVE, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Vice-President and Chief
Financial Officer
----------------------------------
MEDTRONIC INTERNATIONAL
TECHNOLOGY, INC.,
a Minnesota corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Vice-President and Chief
Financial Officer
----------------------------------
70
MEDTRONIC SOFAMOR XXXXX, INC.,
an Indiana corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Vice-President and Chief
Financial Officer
----------------------------------
MEDTRONIC USA, INC.,
a Minnesota corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Vice-President and Chief
Financial Officer
----------------------------------
71
BANK OF AMERICA, N.A.,
individually in its capacity as
Administrative Agent
By: /s/ Xxxxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxxxx Xxxxx
-----------------------------------
Title: Vice-President
----------------------------------
LENDERS: BANK OF AMERICA, N.A.,
As Lender
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Principal
----------------------------------
BANK OF AMERICA, N.A.,
As Swingline Lender
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Principal
----------------------------------
BANK OF AMERICA, N.A.,
As Letter of Credit Issuer
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Principal
----------------------------------
72
LENDERS: BANK ONE, N.A.,
As Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Director, Capital Markets
----------------------------------
THE BANK OF TOKYO-MITSUBISHI,
LTD., CHICAGO BRANCH
As Lender
By: /s/ Xxxxxxx XxXxx
-------------------------------------
Name: Xxxxxxx XxXxx
-----------------------------------
Title: Vice President & Manager
----------------------------------
BNP PARIBAS,
As Lender
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Director
----------------------------------
By: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
CITICORP USA, INC.
As Lender
By: /s/ Xxxx X'Xxxxxxx
-------------------------------------
Name: Xxxx X'Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
73
DEUTSCHE BANK AG, NEW YORK
BRANCH
As Lender
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
-----------------------------------
Title: Director
----------------------------------
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
-----------------------------------
Title: Director
----------------------------------
FIRST UNION NATIONAL
BANK,
As Lender
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
FLEET NATIONAL BANK, N.A.
As Lender
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
THE FUJI BANK, LTD.
As Lender
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
-----------------------------------
Title: Senior Vice President & Group
Head
----------------------------------
74
KEYBANK NATIONAL
ASSOCIATION,
As Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
ROYAL BANK OF CANADA,
As Lender
By: /s/ Xxxxxx X. XxxXxxxxx
-------------------------------------
Name: Xxxxxx X. XxxXxxxxx
-----------------------------------
Title: Senior Manager
----------------------------------
SUNTRUST BANK,
As Lender
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
-----------------------------------
Title: Assistant Vice President
----------------------------------
UBS AG, STAMFORD BRANCH,
As Lender
By: /s/ Xxxxxxx X. Saint
-------------------------------------
Name: Xxxxxxx X. Saint
-----------------------------------
Title: Associate Director Banking
Products Services, US
----------------------------------
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
-----------------------------------
Title: Associate Director Banking
Products Services, US
----------------------------------
75
U.S. BANK NATIONAL
ASSOCIATION,
As Lender
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
As Lender
By: /s/ Xxxxxxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
Xxxxx Fargo Bank, National
Association
----------------------------------
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------
Title: Senior Vice President
----------------------------------
76
