TERM LOAN CREDIT AGREEMENT dated as of December 4, 2007 among ADVANCE AUTO PARTS, INC., ADVANCE STORES COMPANY, INCORPORATED, as Borrower, The Lenders Party Hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent J.P. MORGAN SECURITIES INC. and...
Exhibit
10.30
dated
as
of December 4, 2007
among
ADVANCE
AUTO PARTS, INC.,
ADVANCE
STORES COMPANY, INCORPORATED, as Borrower,
The
Lenders Party Hereto
and
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
___________________________
X.X.
XXXXXX SECURITIES INC.
and
BANC
OF
AMERICA SECURITIES LLC,
as
Joint
Lead Arrangers and Joint Bookrunners
___________________________
BANK
OF
AMERICA, N.A.,
as
Syndication Agent
[CS&M
Ref. No. -- 6701-760]
TABLE
OF
CONTENTS
Page
ARTICLE
I
Definitions
SECTION 1.01. | Defined Terms |
1
|
SECTION 1.02. | Classification of Loans and Borrowings |
16
|
SECTION 1.03. | Terms Generally |
16
|
SECTION 1.04. | Accounting Terms; GAAP; Fiscal Month |
16
|
ARTICLE
II
The
Credits
SECTION
2.01.
|
Commitments |
17
|
SECTION 2.02. | Loans and Borrowings |
17
|
SECTION 2.03. | Requests for Borrowings |
18
|
SECTION 2.04. | Funding of Borrowings |
18
|
SECTION 2.05. | Interest Elections |
19
|
SECTION 2.06. | Termination and Reduction of Commitments |
20
|
SECTION 2.07. | Repayment of Loans; Evidence of Debt |
21
|
SECTION 2.08. | Prepayment of Loans |
21
|
SECTION 2.09. | Fees |
22
|
SECTION 2.10. | Interest |
22
|
SECTION 2.11. | Alternate Rate of Interest |
23
|
SECTION 2.12. | Increased Costs |
23
|
SECTION 2.13. | Break Funding Payments |
24
|
SECTION 2.14. | Taxes |
25
|
SECTION 2.15. | Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
26
|
SECTION 2.16. | Mitigation Obligations; Replacement of Lenders |
28
|
ARTICLE
III
Representations
and Warranties
SECTION
3.01.
|
Organization; Powers |
29
|
SECTION 3.02. | Authorization; Enforceability |
29
|
SECTION 3.03. | Governmental Approvals; No Conflicts |
29
|
SECTION 3.04. | Financial Condition; No Material Adverse Change |
30
|
SECTION 3.05. | Properties |
30
|
SECTION 3.06. | Litigation and Environmental Matters |
30
|
SECTION 3.07. | Compliance with Laws and Agreements |
31
|
SECTION 3.08. | Investment Company Status |
31
|
SECTION 3.09. | Taxes |
31
|
i
SECTION
3.10.
|
ERISA |
31
|
SECTION 3.11. | Disclosure |
31
|
SECTION 3.12. | Subsidiaries |
32
|
SECTION 3.13. | Insurance |
32
|
SECTION 3.14. | Solvency |
32
|
ARTICLE
IV
Conditions
SECTION
4.01.
|
Effective Date |
32
|
SECTION 4.02. | Each Credit Event |
34
|
ARTICLE
V
Affirmative
Covenants
SECTION
5.01.
|
Financial Statements and Other Information |
34
|
SECTION 5.02. | Notices of Material Events |
36
|
SECTION 5.03. | Existence; Conduct of Business |
36
|
SECTION 5.04. | Payment of Obligations |
36
|
SECTION 5.05. | Maintenance of Properties |
37
|
SECTION 5.06. | Insurance |
37
|
SECTION 5.07. | Books and Records; Inspection and Audit Rights |
37
|
SECTION 5.08. | Compliance with Laws |
37
|
SECTION 5.09. | Use of Proceeds |
37
|
ARTICLE
VI
Negative
Covenants
SECTION
6.01.
|
Subsidiary Indebtedness |
38
|
SECTION 6.02. | Liens |
39
|
SECTION 6.03. | Fundamental Changes |
40
|
SECTION 6.04. | Investments, Loans, Advances, Guarantees and Acquisitions |
41
|
SECTION 6.05. | Swap Agreements |
42
|
SECTION 6.06. | Restrictive Agreements |
42
|
SECTION 6.07. | Sale and Leaseback Transactions |
43
|
SECTION 6.08. | Leverage Ratio |
43
|
SECTION 6.09. | Consolidated Coverage Ratio |
43
|
ARTICLE
VII
Events
of
Default
ii
ARTICLE
VIII
The
Administrative Agent
ARTICLE
IX
Miscellaneous
SECTION
9.01.
|
Notices |
47
|
SECTION 9.02. | Waivers; Amendments |
48
|
SECTION 9.03. | Expenses; Indemnity; Damage Waiver |
49
|
SECTION 9.04. | Successors and Assigns |
50
|
SECTION 9.05. | Survival |
54
|
SECTION 9.06. | Counterparts; Integration; Effectiveness |
54
|
SECTION 9.07. | Severability |
55
|
SECTION 9.08. | Right of Setoff |
55
|
SECTION 9.09. | Governing Law; Jurisdiction; Consent to Service of Process |
55
|
SECTION 9.10. | WAIVER OF JURY TRIAL |
56
|
SECTION 9.11. | Headings |
56
|
SECTION 9.12. | Confidentiality |
56
|
SECTION 9.13. | Interest Rate Limitation |
57
|
SECTION 9.14. | USA Patriot Act |
58
|
SCHEDULES:
Schedule
2.01
|
— |
Commitments
|
Schedule 3.06 | — |
Disclosed
Matters
|
Schedule 3.12
|
— |
Subsidiaries
|
Schedule
3.13
|
— |
Insurance
|
Schedule 6.01 | — |
Existing
Indebtedness
|
Schedule 6.02 | — |
Existing
Liens
|
Schedule
6.04
|
— |
Existing
Investments
|
Schedule 6.06 | — |
Existing
Restrictions
|
EXHIBITS:
Exhibit
A
|
— |
Form
of Assignment and Assumption
|
Exhibit
B
|
— |
Form
of Guarantee Agreement
|
Exhibit
C-1
|
— |
Form
of Opinion of Xxxxxxx XxXxxxxxx LLP
|
Exhibit
C-2
|
— |
Form
of Opinion of XxXxxxx Xxxx
|
iii
TERM
LOAN
CREDIT AGREEMENT dated as of December 4, 2007, among ADVANCE AUTO PARTS, INC.,
ADVANCE STORES COMPANY, INCORPORATED, the LENDERS party hereto, and JPMORGAN
CHASE BANK, N.A., as Administrative Agent.
The
parties hereto agree as follows:
ARTICLE
I
Definitions
SECTION
1.01. Defined
Terms. As used in this 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.
“Adjusted
Consolidated Net Income” means, for any period, net income or loss of
Holdings and its Subsidiaries for such period determined on a consolidated
basis
in accordance with GAAP, provided that, without duplication, (a) there
shall be excluded (i) the income of any Person in which any other Person
(other than the Borrower or any of the Subsidiaries or any director holding
qualifying shares in compliance with applicable law) has a joint interest,
except such income shall be included to the extent of the amount of dividends
or
other distributions actually paid to the Borrower or any of the Subsidiaries
by
such Person during such period, (ii) the income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any of the Subsidiaries or the date that
Person’s assets are acquired by the Borrower or any of the Subsidiaries and
(iii) gains and losses from, or incurred in connection with, the sale,
liquidation or other disposition of assets outside the ordinary course of
business and (b) for purposes of calculating the Leverage Ratio, Adjusted
Consolidated Net Income shall be determined on a pro forma basis to give effect
to any Permitted Acquisitions and any divestitures by the Borrower or any
Subsidiary of all or substantially all the assets of, or all the Equity
Interests in, a Person or division or line of business of a Person occurring
during such period as if such transactions had occurred on the first day of
such
period.
“Adjusted
LIBO Rate” means an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to, with respect to any Eurodollar Borrowing
for
any Interest Period, (i) the LIBO Rate for such Interest Period multiplied
by
(ii) the Statutory Reserve Rate.
“Administrative
Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative
agent for the Lenders hereunder.
“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by
the Administrative Agent.
2
“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.
“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 ½ 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
Rate” means, for any day, with respect to any ABR Loan or Eurodollar Loan or
with respect to commitment fees in respect of Commitments payable under
Section 2.09(a), as the case may be, the applicable rate per annum set
forth below under the caption “ABR Spread”, “Eurodollar Spread” or “Commitment
Fee Rate”, as the case may be, based upon the Ratings by S&P and Xxxxx’x,
respectively, applicable on such date:
Index
Debt Ratings
|
ABR
Spread
|
Eurodollar
Spread
|
Commitment
Fee Rate
|
Category
1
Equal
to or greater than BBB+/Baa1
|
0.0%
|
0.50%
|
0.125%
|
Category
2
Equal
to or greater than BBB/Baa2
|
0.0%
|
0.60%
|
0.150%
|
Category
3
Equal
to or greater than BBB-/Baa3
|
0.0%
|
0.75%
|
0.175%
|
Category
4
Equal
to or greater than BB+/Ba1
|
0.0%
|
1.00%
|
0.200%
|
Category
5
Equal
to or greater than BB/Ba2
|
0.25%
|
1.25%
|
0.250%
|
Category
6
Lower
than BB/Ba2
|
0.50%
|
1.50%
|
0.250%
|
For
purposes of the foregoing, (a) if either Xxxxx’x or S&P shall not have
in effect a Rating (other than by reason of the circumstances referred to in
the
last sentence of this paragraph), then such rating agency shall be deemed to
have established a Rating in Category 6; (b) if the Ratings established or
deemed to have been established by Xxxxx’x 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 below that of the higher of the
two
Ratings; and (c) if the Ratings established or deemed to have been
established by Xxxxx’x and S&P shall be changed (other than as a result of a
change in the rating system of Xxxxx’x or S&P), such change shall be
effective as of the date on which it is first announced by the applicable rating
agency, irrespective of when notice of such change shall have been furnished
by
the Borrower to the Administrative Agent and the Lenders pursuant to Section
5.01 or otherwise. Each change in the Applicable Rate shall
3
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 Xxxxx’x 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” has the meaning assigned to such term in
Section 9.04(b).
“Arrangers”
means X.X. Xxxxxx Securities Inc. and Banc of America Securities LLC, each
in
its capacity as joint lead arranger in respect of the credit facility
established hereunder.
“Assignment
and Assumption” means an assignment and assumption 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 Effective Date to but
excluding the earlier of the Commitment Expiration Date and the date of
termination of the Commitments.
“Board”
means the Board of Governors of the Federal Reserve System of the United States
of America.
“Borrower”
means Advance Stores Company, Incorporated, a Virginia corporation.
“Borrowing”
means 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.
“Borrowing
Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03.
“Business
Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City 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.
“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
4
Person
under GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
“Change
in Control” means at any time, (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person other than Holdings of
any
shares of capital stock of the Borrower; (b) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of Rule 13d-5 under the United States Securities and
Exchange Act of 1934 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 Holdings; or (c) occupation of a majority of the
seats (other than vacant seats) on the board of directors of Holdings by Persons
who were not Continuing Directors.
“Change
in Law” means (a) the adoption of any law, rule or regulation after the
date of this 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 Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.12(b), by any lending office of such Lender or by such
Lender’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 Effective Date.
“Code”
means the Internal Revenue Code of 1986, as amended from time to
time.
“Consolidated
Coverage Ratio” means, for any period, the ratio of (a) Consolidated EBITDAR
for such period to (b) the sum of Consolidated Interest Expense plus
Consolidated Rent Expense for such period.
“Commitment”
means, with respect to each Lender, the commitment, if any, of such Lender
to
make Loans pursuant to Section 2.01, as such commitment may be (a) reduced
from
time to time pursuant to Section 2.06 and (b) reduced or increased from time
to
time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender’s Commitment is
set forth on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender shall have assumed its Commitment, as
applicable. The initial aggregate amount of the Commitments is
$200,000,000.
“Commitment
Expiration Date” means the date that is six months after the Effective
Date.
“Consolidated
EBITDA” means, for any period, Adjusted Consolidated Net Income for such
period, plus, without duplication and to the extent deducted from revenues
in
determining Adjusted Consolidated Net Income, the sum of (a) consolidated
interest expense for such period, (b) the aggregate amount of letter of
credit fees accrued during such period, (c) the aggregate amount of income
tax expense for such period, (d) all depreciation and amortization expense
for such period and (e) other non-cash charges for such period (excluding
any non-cash charges that constitute an accrual of or
5
reserve
for future cash payments), and minus, without duplication and to the extent
added to revenues in determining Adjusted Consolidated Net Income for such
period, all non-cash gains during such period, all as determined on a
consolidated basis with respect to Holdings and the Subsidiaries in accordance
with GAAP.
“Consolidated
EBITDAR” means, for any period, the sum of Consolidated EBITDA for such
period plus Consolidated Rent Expense for such period.
“Consolidated
Interest Expense” means, for any period, the interest expense of Holdings
and its Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP, less, to the extent included in interest expense, the
amortization during such period of debt issuance and deferred financing costs,
commissions and fees; provided, however, that the aggregate amount
of such amortization that may be excluded in calculating Consolidated Interest
Expense in respect of any financing transaction shall not exceed 3.5% of the
aggregate amount of such financing.
“Consolidated
Rent Expense” means, for any period, the rental expense attributable to
leases of real property that is deducted in determining Adjusted Consolidated
Net Income for such period, determined on a consolidated basis in accordance
with GAAP.
“Continuing
Directors” means the directors of Holdings on the Effective Date and each
other director, if, in each case, such other director’s nomination for election
to the board of directors of Holdings is approved by a majority of the then
Continuing Directors.
“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.
“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.
“Deferred
Compensation Obligations” means a non-qualified deferred compensation plan
that allows executives of the Borrower and the Subsidiaries to defer receipt
of
specified portions of base and bonus earnings each calendar
year. Deferrals are maintained as a liability, along with assets
owned by the Borrower, in a trust owned by the Borrower.
“Designated
Vendor” means any vendor or supplier from which the Borrower purchases
inventory and that has been designated by the Borrower as a participant in
a
Permitted Vendor Financing.
“Designated
Vendor Accounts” means (a) accounts receivable owed by the Borrower in
respect of inventory purchased from a Designated Vendor or (b) drafts
6
issued
by
the Borrower as payment in full of one or more of such accounts receivable;
provided that such accounts receivable or drafts shall constitute
Designated Vendor Accounts only after having been sold by such Designated Vendor
to a DVA Creditor pursuant to a Permitted Vendor Financing and only so long
as
owed to a DVA Creditor.
“Disclosed
Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06.
“DVA
Creditor” means (a) any financial institution that has agreed to
purchase one or more Designated Vendor Accounts from a Designated Vendor
pursuant to a Permitted Vendor Financing and (b) any successor or assignee
of any such financial institution that holds any Designated Vendor Accounts
originally purchased by such financial institution, provided that such successor
or assignee is not a Designated Vendor, a Loan Party or an Affiliate of a
Designated Vendor or a Loan Party.
“DVA
Obligations” means the obligations of the Borrower to pay Designated Vendor
Accounts. For purposes of this Agreement, the amount of any DVA
Obligation at any time shall be the entire amount payable in respect thereof
as
and when due.
“dollars”
or “$” refers to lawful money of the United States of
America.
“Effective
Date” means the date on which the conditions specified in Section 4.01
are satisfied (or waived in accordance with Section 9.02).
“Environmental
Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by or with any Governmental Authority, relating
in
any way to the environment, preservation or reclamation of natural resources,
the management, release or threatened release of any Hazardous Material or
to
health and safety matters.
“Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties
or
indemnities), of Holdings, 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
Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or
other equity ownership interests in a Person or any warrants, options or other
rights to acquire such interests.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from
time
to time.
7
“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 Adjusted LIBO Rate.
“Event
of Default” has the meaning assigned to such term in
Article VII.
“Excluded
Margin Stock” means
any shares of capital stock of Holdings that constitute “margin stock” within
the meaning of Regulation U of the Board and are held as treasury stock by
Holdings.
“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender 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, (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.16(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
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender’s failure to comply with Section 2.14(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the
8
time
of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.14(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.
“Financial
Officer” means the chief financial officer, vice president of finance,
principal accounting officer, treasurer or controller of Holdings or the
Borrower, as applicable.
“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.
“Foreign
Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States of America or any State thereof or
the
District of Columbia.
“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 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
9
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.
“Guarantee
Agreement” means the Guarantee Agreement, substantially in the form of
Exhibit B, made by Holdings in favor of the Administrative Agent for the
benefit of the Lenders.
“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.
“Holdings”
means Advance Auto Parts, Inc., a Delaware corporation.
“Indebtedness”
of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind,
(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 (i) accounts payable incurred
in the ordinary course of business that are not overdue by more than
90 days and (ii) Deferred Compensation Obligations), (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, (i) all
obligations, contingent or otherwise, of such Person in respect of bankers’
acceptances and (j) all DVA Obligations. 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 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. The
amount of any Indebtedness described in clause (f) above shall be limited to
the
maximum amount payable under the applicable Guarantee of such Person if such
Guarantee contains limitations on the amount payable thereunder.
“Indemnified
Taxes” means Taxes other than Excluded Taxes.
“Index
Debt” means senior, unsecured, long-term indebtedness for borrowed money of
Holdings that is not guaranteed by any other Person or subject to any other
credit enhancement.
10
“Information
Memorandum” means the Confidential Information Memorandum dated November
2007 relating to the Borrower and the Transactions.
“Interest
Election Request” means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.05.
“Interest
Payment Date” means (a) with respect to any ABR Loan, 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 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 Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or
six months (or, to the extent made available by all Lenders, nine or twelve
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 next 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. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
“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 Assumption, other
than
any such Person that ceases to be a party hereto pursuant to an Assignment
and
Assumption.
“Leverage
Ratio” means, on any date, the ratio of (a) Total Debt as of such date
to (b) Consolidated EBITDA for the period of four consecutive fiscal
quarters of Holdings most recently ended as of such date (or, if such date
is
not the last day of a fiscal quarter, then most recently ended prior to such
date), all determined on a consolidated basis in accordance with
GAAP.
“LIBO
Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, the rate appearing on Page 3750 of the Dow Xxxxx Markets Service (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
11
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.
“Loan
Documents” means this Agreement, the promissory notes, if any, executed and
delivered pursuant to Section 2.07(e), and the Guarantee Agreement.
“Loan
Parties” means Holdings and the Borrower.
“Loans”
means the loans made by the Lenders to the Borrower pursuant to this
Agreement.
“Material
Adverse Effect” means a material adverse effect on (a) the business,
assets, operations, prospects or condition, financial or otherwise, of Holdings,
the Borrower and the Subsidiaries taken as a whole, (b) the ability of any
Loan Party to perform any of its obligations under any Loan Document or
(c) the rights of or benefits available to the Lenders under any Loan
Document.
“Material
Indebtedness” means Indebtedness (other than the Loans), or obligations in
respect of one or more Swap Agreements, of any one or more of Holdings, the
Borrower and their Subsidiaries in an aggregate principal amount exceeding
$25,000,000. For purposes of determining Material Indebtedness, the
“principal amount” of the obligations of Holdings, the Borrower or any
Subsidiary in respect of any Swap Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that Holdings, the
Borrower or such Subsidiary would be required to pay if such Swap Agreement
were
terminated at such time.
“Maturity
Date” means October 5, 2011.
“Moody’s”
means Xxxxx’x Investors Service, Inc.
“Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
12
“Other
Taxes” means any and all current or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any
payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
“PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
“Permitted
Acquisition” means any acquisition by the Borrower or a Subsidiary of the
Borrower of all or substantially all the assets of, or all the Equity Interests
in, a Person or division, line of business or business unit of a Person if,
immediately after giving effect thereto, (a) no Default has occurred and is
continuing or would result therefrom, (b) all transactions related thereto
are consummated in accordance with applicable laws, (c) all the Equity
Interests of any Subsidiary formed for the purpose of or resulting from such
acquisition shall be owned directly by the Borrower or a Subsidiary of the
Borrower, (d) the Borrower and its Subsidiaries are in compliance, on a pro
forma basis after giving effect to such acquisition, with the covenants
contained in Sections 6.08 and 6.09 recomputed as of the last day of the
most recently ended fiscal quarter of the Borrower for which financial
statements are available, as if such acquisition (and any related incurrence
or
repayment of Indebtedness, with any new Indebtedness being deemed to be
amortized over the applicable testing period in accordance with its terms,
and
assuming that any revolving loans under the Revolving Credit Agreement borrowed
in connection with such acquisition are repaid with excess cash balances when
available) had occurred on the first day of each relevant period for testing
such compliance and (e) the Borrower has delivered to the Administrative
Agent an officers’ certificate to the effect set forth in clauses (a), (b),
(c) and (d) above, together with all relevant financial information for the
Person or assets to be acquired.
“Permitted
Encumbrances” means:
(a)
Liens imposed by law for taxes or government assessments 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 60 days or are being
contested in compliance with Section 5.04;
(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 (and, to the extent securing a trade contract or indemnity
bond,
Liens on assets to which such contract or bond relates) to secure the
performance of bids, trade contracts, leases, statutory obligations, surety,
indemnity and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
13
(e)
judgment liens in respect of judgments that do not constitute an Event
of
Default under clause (k) of Article VII;
(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 interfere with the ordinary
conduct of business of Holdings or any Subsidiary;
(g)
any interest or title of a lessor under any lease that is limited to
the
property subject to such lease; and
(h)
unperfected Liens of any vendor on inventory sold by such vendor securing
the unpaid purchase price of such inventory, to the extent such Liens are stated
to be reserved in such vendor’s sale documents (and not granted by separate
agreement of the Borrower or any Subsidiary);
provided
that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.
“Permitted
Investments” means:
(a)
direct obligations of, or obligations the principal of and interest
on
which are unconditionally guaranteed by, the United States of America (or by
any
agency thereof to the extent such obligations are backed by the full faith
and
credit of the United States of America), in each case maturing within one year
from the date of acquisition thereof;
(b)
investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, a credit
rating from S&P of A1 or higher or from Moody’s of P1 or
higher;
(c)
investments in certificates of deposit, banker’s acceptances and time
deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts issued
or offered by, any domestic office of any commercial bank organized under the
laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than
$500,000,000;
(d)
fully collateralized repurchase agreements with a term of not more than
30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in
clause (c) above;
(e)
investments in money market or mutual funds substantially all the assets
of which are comprised of securities of the types described in any of clauses
(a) through (d) above; and
14
(f)
corporate notes and corporate bonds or municipal securities which includes
variable rate demand notes and auction rate municipals, assigned a credit rating
from S&P of A2 or higher or from Moody’s of A or higher.
“Permitted
Vendor Financing” means a financing arrangement pursuant to which a
Designated Vendor sells to a financial institution that is a DVA Creditor
(a) accounts receivable owed to such Designated Vendor by the Borrower or
(b) drafts issued by the Borrower to replace such accounts
receivable.
“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 JPMorgan Chase Bank, N.A., as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective from
and including the date such change is publicly announced as being
effective.
“Rating”
means (a) the rating by the applicable rating agency of the Index Debt or (b)
in
the absence of Index Debt, the “corporate rating” or “corporate family rating”
or the equivalent applicable to Holdings by the applicable rating
agency.
“Register”
has the meaning set forth in Section 9.04.
“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.
“Required
Lenders” means, at any time, Lenders having outstanding Loans and unused
Commitments representing more than 50% of the sum of the total outstanding
Loans
and unused Commitments at such time.
“Revolving
Effective Date” means the “Effective Date” as such term is defined in the
Revolving Credit Agreement on the date hereof.
“Sale
and Leaseback Transaction” has the meaning assigned to such term in
Section 6.07.
15
“S&P”
means Standard & Poor’s Ratings Group, Inc.
“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 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.
“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 Holdings or the Borrower, as the context
requires.
“Swap
Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled
by
reference to, one or more rates, currencies, commodities, equity or debt
instruments or securities, or economic, financial or pricing indices or measures
of economic, financial or pricing risk or value or any similar transaction
or
any combination of these transactions; provided that no phantom stock or
similar plan providing for payments only on account of services provided by
current or former directors, officers, employees or consultants of Holdings,
the
Borrower or the Subsidiaries shall be a Swap Agreement.
“Syndication
Agent” means Bank of America, N.A., in its capacity as syndication agent
hereunder.
“Taxes”
means any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
16
“Total
Debt” means, as of the date of determination, an amount equal to all
Indebtedness of the Borrower and its Subsidiaries outstanding on such date,
excluding Indebtedness described in clauses (e), (f) and (h) of the
definition of “Indebtedness”; provided that any letters of credit and
letters of guaranty referred to in clause (h) of the definition
“Indebtedness” shall not be excluded from Total Debt to the extent issued to
support any other obligations constituting Indebtedness.
“Transactions”
means the execution and delivery by each Loan Party of each Loan Document to
which it is a party, the borrowing of Loans and the use of the proceeds
thereof.
“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate
of
interest on such Loan, or on the Loans constituting such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Alternate Base
Rate.
“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.
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 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 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; Fiscal Month. 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
17
to
any
provision hereof to eliminate the effect of any change occurring after the
date
hereof in GAAP or in the application thereof on the operation of such provision
(or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless
of
whether any such notice is given before or after such change in GAAP or in
the
application thereof, then such provision shall be interpreted on the basis
of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith. Except as otherwise provided herein, all
references to a fiscal month shall mean any period of four or five calendar
weeks used by the Borrower for recording or reporting its interim financial
information.
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 on the Effective Date and on not more than five other dates
during the Availability Period in an aggregate principal amount not exceeding,
on the date any such Loan is made, such Lender’s Commitment on such
date. Amounts prepaid or repaid in respect of Loans may not be
reborrowed.
SECTION
2.02. Loans
and Borrowings. (a) Each Loan shall be made as part of
a Borrowing consisting of Loans of the same Type made by the Lenders ratably
in
accordance with their respective Commitments. The failure of any
Lender to make any 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 Loans as required.
(b) Subject
to Section 2.11, each Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may request in accordance
herewith. 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 Agreement.
(c) At
the
commencement of each Interest Period for any Eurodollar Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $5,000,000; provided that
an ABR Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the total Commitments. Borrowings of more than one
Type may be outstanding at the same time; provided that there shall not
at any time be more than a total of 10 Eurodollar Borrowings
outstanding.
18
(d) Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled to
elect to convert or continue any Borrowing if the Interest Period requested
with
respect thereto would end after the Maturity Date.
SECTION
2.03. Requests
for Borrowings. (a) To request a Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone
(a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic
and written Borrowing Request shall specify the following information in
compliance with Section 2.02:
(i) the
aggregate amount of such Borrowing, which, together with the aggregate amount
of
each other Borrowing requested to be made on the date of such Borrowing, shall
be at least equal to $25,000,000 (or, in the case of Borrowings to be made
on
the Effective Date, the amount specified in paragraph (b) of this Section
2.03);
(ii) the
date
of such Borrowing, which shall be a Business Day;
(iii) whether
such 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
2.04.
If
no
election as to the Type of Borrowing is specified, then the requested 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 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
Borrowing.
(b) The
Borrower shall request a Borrowing or Borrowings to be made on the Effective
Date in an aggregate principal amount at least equal to
$50,000,000.
SECTION
2.04. Funding
of 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 12:00 noon, New York City time, to the account
of
the
19
Administrative
Agent most recently designated by it for such purpose by notice to the
Lenders. 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 designated by the Borrower in the applicable Borrowing
Request.
(b) Unless
the Administrative Agent shall have received notice from a Lender prior to
the
proposed date of any Borrowing that such Lender will not make available to
the
Administrative Agent such Lender’s share of such 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
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 greater of the Federal Funds Effective Rate and a
rate
determined by the Administrative Agent in accordance with banking industry
rules
on interbank compensation 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 Borrowing.
SECTION
2.05. Interest
Elections. (a) Each Borrowing initially shall be of
the Type specified in the applicable Borrowing Request and, in the case of
a
Eurodollar Borrowing, shall have an initial Interest Period as specified in
such
Borrowing Request. Thereafter, the Borrower may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case
of
a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided
in
this Section. The Borrower may elect different options with respect
to different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing.
(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 Borrowing
Request would be required under Section 2.03 if the Borrower were requesting
a
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
in a
form approved by the Administrative Agent and signed by the
Borrower.
(c) Each
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
20
portions
thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below shall
be
specified for each resulting 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 Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
and
(iv) if
the
resulting 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”.
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 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 Borrowing is repaid as provided herein, at the end of such
Interest Period such Borrowing shall be converted to an ABR
Borrowing. 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 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
2.06. Termination
and Reduction of Commitments. (a) On the date that
each Loan is funded, the Commitment of each Lender shall be reduced by the
principal amount of Loans made by it. Unless previously terminated,
the Commitments shall terminate on the Commitment Expiration Date.
(b) The
Borrower may at any time terminate, or from time to time reduce, the
Commitments; provided that each reduction of the Commitments shall be in
an amount that is an integral multiple of $1,000,000 and not less than
$5,000,000.
(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
21
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
under paragraph (b) of this Section shall be made ratably among the Lenders
in
accordance with their respective Commitments.
SECTION
2.07. Repayment of
Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account
of
each Lender the then unpaid principal amount of each Loan of such Lender on
the
Maturity Date.
(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 primafacie 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
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 (or, if
requested by such Lender, to such Lender and its registered assigns) and in
a
form approved by the Administrative Agent. 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 (or, if such promissory note is a registered note, to such payee and
its
registered assigns).
SECTION
2.08. 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, subject
to the requirements of this Section.
22
(b) The
Borrower shall notify the Administrative Agent by telephone (confirmed by
telecopy) of any prepayment hereunder (i) in the case of prepayment of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before 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
a notice of prepayment 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 prepayment date) if such condition is not
satisfied. Promptly following receipt of any such notice, 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 2.10.
SECTION
2.09. Fees. (a) The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee, which shall accrue at the Applicable Rate on the
average daily unused amount of the Commitment of such Lender during the period
from and including the Effective Date to but excluding the date on which the
Commitments terminate. Accrued commitment 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 Effective Date. All commitment 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) All
fees
payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution to the Lenders entitled
thereto. Fees paid shall not be refundable under any
circumstances.
SECTION
2.10. Interest. (a) The
Loans comprising each ABR Borrowing shall bear interest at the Alternate
Base Rate plus the Applicable Rate.
(b) The
Loans
comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Rate.
(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, 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 in the preceding paragraphs of
this Section or (ii) in the case of any
23
other
amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a)
of
this Section.
(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, accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurodollar Loan
prior to the end of the current Interest Period therefor, accrued interest
on
such Loan shall be payable on the effective date of such
conversion.
(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
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION
2.11. Alternate
Rate of Interest. If prior to the commencement of any Interest
Period for a Eurodollar Borrowing:
(a) the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate for such Interest Period; or
(b) the
Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate for such Interest Period will not adequately and fairly reflect the cost
to
such Lenders of making or maintaining their Loans included in such 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 Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION
2.12. 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 (except any such reserve requirement reflected in the Adjusted LIBO
Rate); or
24
(ii) impose
on
any Lender or the London interbank market any other condition affecting this
Agreement or Eurodollar Loans made by such Lender;
and
the
result of any of the foregoing shall be to increase the cost to such Lender
of
making or maintaining any Eurodollar Loan (or of maintaining its obligation
to
make any such Loan) or to reduce the amount of any sum received or receivable
by
such Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction
suffered.
(b) If
any
Lender 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 capital or
on the capital of such Lender’s holding company, if any, as a consequence of
this Agreement or the Loans made by such Lender to a level below that which
such
Lender or such Lender’s holding company could have achieved but for such Change
in Law (taking into consideration such Lender’s policies and the policies of
such Lender’s holding company with respect to capital adequacy), then from time
to time the Borrower will pay to such Lender such additional amount or amounts
as will compensate such Lender or such Lender’s holding company for any such
reduction suffered.
(c) A
certificate of a Lender setting forth the amount or amounts necessary to
compensate such Lender or its holding company, as the case may be, as specified
in paragraph (a) or (b) of this Section, and, in reasonable detail, the
basis therefor, 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.
(d) Failure
or delay on the part of any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s right to demand such
compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender’s intention to claim compensation therefor;
providedfurther that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 270-day period referred
to above shall be extended to include the period of retroactive effect
thereof.
SECTION
2.13. 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 may be revoked under Section
2.08(b) and is revoked in accordance therewith), or (d) the assignment of
any Eurodollar 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 2.16,
then, in any such event, the Borrower shall compensate each Lender for the
loss,
cost and expense attributable to
25
such
event. In the case of a Eurodollar Loan, such loss, cost or expense
to any Lender shall be deemed to include an amount determined by such Lender
to
be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at
the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for
the
period that would have been the Interest Period for such Loan), over
(ii) the amount of interest which would accrue on such principal amount for
such period at the interest rate which such Lender would bid were it to bid,
at
the commencement of such period, for dollar deposits of a comparable amount
and
period from other banks in the Eurodollar market. A certificate of
any Lender setting forth any amount or amounts that such Lender is entitled
to
receive pursuant to this Section, and, in reasonable detail, the basis therefor,
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
2.14. Taxes. (a) Any
and all payments by or on account of any obligation of the Borrower hereunder
or
under any other Loan Document 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 or Lender
(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 and each Lender, within 10
days after written demand therefor, for the full amount of any Indemnified
Taxes
or Other Taxes paid by the Administrative Agent or such Lender, as the case
may
be, on or with respect to any payment by or on account of any obligation of
the
Borrower hereunder or under any other Loan Document (including Indemnified
Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) 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, and setting forth, in reasonable detail, the basis
therefor, delivered to the Borrower by a Lender or by the Administrative Agent
on its own behalf or on behalf of a Lender, shall be conclusive absent manifest
error.
(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
26
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) Any
Foreign Lender that is entitled to an exemption from or reduction of withholding
tax under the Code, the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect
to
payments under this Agreement shall deliver to the Borrower (with a copy to
the
Administrative Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law
or
reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate. Any Foreign Lender which is
not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and
intends to claim exemption from U.S. Federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of “portfolio
interest” shall deliver to the Borrower (with a copy for the Administrative
Agent) a Form W-8BEN, or any subsequent versions thereof or successors thereto
(and, if such Foreign Lender delivers a Form W-8BEN, a certificate representing
that such Foreign Lender is not a bank for purposes of Section 881(c) of the
Code, is not a ten-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4)
of
the Code)), properly completed and duly executed by such Foreign Lender claiming
complete exemption from, or a reduced rate of, U.S. Federal withholding tax
on
payments of interest by the Borrower under this Agreement and the other Loan
Documents.
(f) If
the
Administrative Agent or a Lender determines, in its sole discretion, that it
has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.14, it shall pay over such
refund to the Borrower (but only to the extent of indemnity payments made,
or
additional amounts paid, by the Borrower under this Section 2.14 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided that the Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to the Administrative Agent or such
Lender in the event the Administrative Agent or such Lender is required to
repay
such refund to such Governmental Authority. Nothing contained in this
Section 2.14(f) shall require the Administrative Agent or any Lender to make
available its tax returns (or any other information relating to its taxes which
it deems confidential) to the Borrower or any other Person.
SECTION
2.15. Payments
Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment
required to be made by it hereunder or under any other Loan Document (whether
of
principal, interest, fees or of
27
amounts
payable under Section 2.12, 2.13, 2.14, or otherwise) prior to 12:00 noon,
New York City time, on the date when due, in immediately available funds,
without set-off or 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 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
except that payments pursuant to Sections 2.12, 2.13, 2.14 and 9.03 shall be
made directly to the Persons entitled thereto and payments pursuant to other
Loan Documents shall be made to the Persons specified therein. 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 under any Loan Document 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 under each Loan Document 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, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of
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, towards payment of principal then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
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
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans 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 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; 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 Agreement or any payment obtained
by a
Lender as consideration for the assignment of or sale of a participation in
any
of its Loans 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.
28
(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 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 severally
agrees to repay to the Administrative Agent forthwith on demand the amount
so
distributed to such Lender 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 greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If
any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(b), 2.15(d) or 9.03(c), 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
2.16. Mitigation
Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.12, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.14, 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, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 2.12 or 2.14, as the case may be, in the future and
(ii) in the reasonable judgment of such Lender, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
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 2.12, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.14, 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
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, 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
29
all
other
amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.12 or payments required to be made
pursuant to Section 2.14, such assignment will result in a material
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
Each
of
Holdings and the Borrower represents and warrants to the Lenders on the
Effective Date and on each date thereafter as required hereunder
that:
SECTION
3.01. Organization;
Powers. Each of Holdings, the Borrower and their 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, would 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 to be entered into by each Loan
Party are within such Loan Party’s corporate powers and have been duly
authorized by all necessary corporate and, if required, stockholder
action. This Agreement has been duly executed and delivered by each
Loan Party and constitutes, and each other Loan Document to which either Loan
Party is to be a party, when executed and delivered by such Loan Party, will
constitute, a legal, valid and binding obligation of such Loan Party (as the
case may be), 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 consent or approval of, registration or filing with, or any other action
by,
any Governmental Authority, except (i) such as have been obtained or made
and are in full force and effect or (ii) where the failure to obtain such
consent or approval or make such registration or filing, individually or in
the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect, (b) will not violate any applicable law or regulation or the
charter, by-laws or other organizational documents of Holdings, the Borrower
or
any of their 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 Holdings, the Borrower or any of
their Subsidiaries or their assets, or give rise to a right thereunder to
require any payment to be made by Holdings, the Borrower or any of their
Subsidiaries, and (d) will not result in the creation or imposition of any
Lien on any asset of Holdings, the Borrower or any of their
Subsidiaries.
30
SECTION
3.04. Financial
Condition; No Material Adverse
Change. (a) Holdings has heretofore
furnished to the Lenders its consolidated balance sheet and statements of
income, stockholders equity and cash flows (i) as of and for the fiscal
year ended December 30, 2006, reported on by Deloitte & Touche LLP,
independent public accountants, and (ii) as of and for the fiscal quarter
and the portion of the fiscal year ended October 6, 2007, certified by one
of
its Financial Officers. Such financial statements present fairly, in
all material respects, the financial position and results of operations and
cash
flows of Holdings and its consolidated subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to customary year-end audit
adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii) above.
(b) Except
as
disclosed in the financial statements referred to above or the notes thereto
and
except for the Disclosed Matters, after giving effect to the Transactions,
none
of Holdings, the Borrower or their Subsidiaries has, as of the Effective Date,
any material contingent liabilities.
(c) Since
December 30, 2006, there has been no material adverse change in the business,
assets, operations, prospects or condition, financial or otherwise, of Holdings,
the Borrower and their Subsidiaries, taken as a whole.
SECTION
3.05. Properties. (a) Each
of Holdings, the Borrower and their 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
Holdings, the Borrower and their Subsidiaries owns, or is licensed to use,
all
trademarks, trade names, copyrights, patents and other intellectual property
material to its business, and the use thereof by Holdings, the Borrower and
their Subsidiaries does not infringe upon the rights of any other Person, except
for any such infringements that, individually or in the aggregate, would 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 Holdings or the Borrower, threatened
against or affecting Holdings, the Borrower or any of their Subsidiaries
(i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, would reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (other
than the Disclosed Matters) or (ii) that involve any of the Loan Documents
or the Transactions.
(b) Except
for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, would not reasonably be expected to result
in
a Material Adverse Effect, neither Holdings, the Borrower nor any of their
Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply
31
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
December 30, 2006, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.
SECTION
3.07. Compliance
with Laws and Agreements. Each of Holdings, the Borrower and
their Subsidiaries is in compliance with all laws, regulations and orders of
any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, would not reasonably
be
expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION
3.08. Investment
Company Status. Neither Holdings, the Borrower nor any of their
Subsidiaries is an “investment company” as defined in, or subject to regulation
under, the Investment Company Act of 1940.
SECTION
3.09. Taxes. Each
of Holdings, the Borrower and their Subsidiaries has timely filed or caused
to
be filed all Tax returns and reports required to have been filed 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 Holdings, 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 would 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 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
$1,000,000 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 $1,000,000 the fair market value
of
the assets of all such underfunded Plans.
SECTION
3.11. Disclosure. Holdings
and the Borrower have disclosed to the Lenders all agreements, instruments
and
corporate or other restrictions to which Holdings, the Borrower or any of their
Subsidiaries is subject, and all other matters known to any of them, that,
individually or in the aggregate, would reasonably be expected to result in
a
Material Adverse Effect. Neither the Information Memorandum
32
nor
any
of the other reports, financial statements, certificates or other information
furnished by or on behalf of either Loan Party to the Administrative Agent
or
any Lender in connection with the negotiation of this Agreement or any other
Loan Document or delivered hereunder or thereunder (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, Holdings
and the Borrower represent only that such information was prepared in good
faith
based upon assumptions believed to be reasonable at the time.
SECTION
3.12. Subsidiaries. Holdings
does not have any Subsidiaries other than the Borrower and the Borrower’s
Subsidiaries. Schedule 3.12 sets forth the name of, and the
ownership interest of the Borrower in, each Subsidiary of the Borrower as of
the
Effective Date.
SECTION
3.13. Insurance. Schedule
3.13 sets forth a description of all insurance maintained by or on behalf of
Holdings, the Borrower and their Subsidiaries as of the Effective
Date. As of the Effective Date, all premiums in respect of such
insurance have been paid.
SECTION
3.14. Solvency. Immediately
after the consummation of the Transactions to occur on the Effective Date and
immediately following the making of each Loan made on the Effective Date,
(a) the fair value of the assets of each Loan Party, at a fair valuation,
will exceed its debts and liabilities, subordinated, contingent or otherwise;
(b) the present fair saleable value of the property of each Loan Party will
be greater than the amount that will be required to pay the probable liability
of its debts and other liabilities, subordinated, contingent or otherwise,
as
such debts and other liabilities become absolute and matured; (c) each Loan
Party will be able to pay its debts and liabilities, subordinated, contingent
or
otherwise, as such debts and liabilities become absolute and matured; and
(d) each Loan Party will not have unreasonably small capital with which to
conduct the business in which it is engaged as such business is now conducted
and is proposed to be conducted following the Effective Date.
ARTICLE
IV
Conditions
SECTION
4.01. Effective
Date. The obligations of the Lenders to make Loans hereunder
shall not become effective until 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 (i) from each party
hereto either a counterpart of this Agreement signed on behalf of such party
or
written evidence satisfactory to the Administrative Agent (which may include
electronic transmission of a signed signature page of this Agreement) that
such
party has signed a counterpart of this Agreement and (ii) from Holdings a
counterpart of the Guarantee Agreement signed on behalf of Holdings or written
evidence satisfactory to the
33
Administrative
Agent (which may include electronic transmission of a signed signature page
of
the Guarantee Agreement) that Holdings has signed a counterpart of the Guarantee
Agreement.
(b) The
Administrative Agent shall have received favorable written opinions (addressed
to the Administrative Agent and the Lenders and dated the Effective Date) of
Xxxxxxx XxXxxxxxx LLP and XxXxxxx Xxxx, counsel for the Loan Parties,
substantially in the form of Exhibits C-1 and C-2, respectively, and covering
such other matters relating to the Loan Parties, the Loan Documents or the
Transactions as the Required Lenders shall reasonably
request. Holdings and the Borrower hereby request such counsel to
deliver such opinions.
(c) The
Administrative Agent shall have received evidence reasonably satisfactory to
it
of the effectiveness of an amendment to the Revolving Credit Agreement the
result of which is that no provision of the Revolving Credit Agreement, as
so
amended, shall be violated by, and no default thereunder shall result from,
the
execution, delivery or performance of this Agreement.
(d) 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 Loan Parties, the authorization
of the Transactions and any other legal matters relating to the Loan Parties,
the Loan Documents or the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.
(e) The
Administrative Agent shall have received such documents and other information
as
the Administrative Agent and the Lenders may reasonably request to satisfy
the
requirements of bank regulatory authorities under applicable “know your
customer” and anti-money laundering rules and regulations, including the USA
Patriot Act.
(f) The
conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be
satisfied and the Administrative Agent shall have received a certificate to
such
effect, dated the Effective Date and signed by the President, a Vice President
or a Financial Officer of the Borrower.
(g) The
Administrative Agent shall have received all fees and other amounts due and
payable by the Borrower on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrower hereunder.
(h) The
Administrative Agent shall have received evidence reasonably satisfactory to
it
that the insurance required by Section 5.06 is in effect.
The
Administrative Agent shall notify the Borrower and the Lenders of the Effective
Date, and such notice shall be conclusive and
binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans hereunder shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or
34
prior
to
3:00 p.m., New York City time, on December 30, 2007 (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate
at
such time).
SECTION
4.02. Each
Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) The
representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct on and as of the date of such Borrowing,
except for representations and warranties expressly made as of an earlier date,
which shall be true and correct as of such earlier date.
(b) At
the
time of and immediately after giving effect to such Borrowing, no Default shall
have occurred and be continuing.
Each
Borrowing shall be deemed to constitute a representation and warranty by
Holdings and 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 terminated and the principal of and interest on
each
Loan and all fees payable hereunder shall have been paid in full, each of
Holdings and the Borrower covenants and agrees with the Lenders
that:
SECTION
5.01. Financial
Statements and Other Information. Holdings and the Borrower will
furnish to the Administrative Agent and each Lender:
(a) within
90 days after the end of each fiscal year of Holdings, Holdings’ audited
consolidated balance sheets and related statements of operations, stockholders’
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 Deloitte & Touche 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 or other material qualification or exception) to the effect that such
consolidated financial statements present fairly in all material respects the
financial condition and results of operations of Holdings and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied;
(b) within
45 days after the end of each of the first three fiscal quarters of each
fiscal year of Holdings, Holdings’ consolidated balance sheets and related
statements of operations, stockholders’ equity 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
35
its
Financial Officers as presenting fairly in all material respects the financial
condition and results of operations of Holdings 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;
(c) concurrently
with any delivery of financial statements (or within three Business Days after
any deemed delivery) under clause (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
Sections 6.08 and 6.09 as of the end of the period covered by such
financial statements and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of Holdings’ audited financial
statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) concurrently
with any delivery of financial statements (or within three Business Days after
any deemed delivery) under clause (a) above, a certificate of the
accounting firm that reported on such financial statements stating whether
they
obtained knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) as
soon
as the same are complete, but in no event more than 60 days after the
commencement of each fiscal year of Holdings, a detailed consolidated budget
presented on a quarterly basis for such fiscal year (including a projected
consolidated balance sheet and related statements of projected operations and
cash flow as of the end of and for such fiscal year) and, promptly when
available, any significant revisions of such budget;
(f) promptly
after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by Holdings, the Borrower
or
any Subsidiary with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or
with
any national securities exchange, or distributed by Holdings to its shareholders
generally, as the case may be;
(g) promptly
following any request therefor, such other information regarding the operations,
business affairs and financial condition of Holdings, the Borrower or any
Subsidiary, or compliance with the terms of any Loan Document, as the
Administrative Agent or any Lender may reasonably request;
(h) promptly
upon the occurrence of any change of Rating by Xxxxx’x or S&P, a certificate
of a Financial Officer setting forth the new Rating, the effective date thereof
and, if applicable, notice of any change in the Applicable Rate as a result
thereof; and
36
(i) promptly
after the same are furnished to the Borrower, copies of any “Management Letter”
delivered to Holdings and the Borrower by their independent certified public
accountants in connection with the delivery of financial statements contemplated
by Section 5.01(a) if such Letter discloses any material weaknesses in internal
financial controls or other material concerns relating to the financial
statements identified by such accountants.
Notwithstanding
the foregoing, any
financial statements or other reports or filings required to be furnished by
Holdings and the Borrower pursuant to clause (a), (b) or (f) of this Section
5.01 shall be deemed to have been furnished if Holdings or the Borrower has
(i)
filed the same with the Securities and Exchange Commission via the XXXXX filing
system and the same are publicly available and (ii) delivered notice thereof
to
the Administrative Agent.
SECTION
5.02. Notices
of Material Events. Upon Holdings or the Borrower obtaining
knowledge thereof, Holdings and the Borrower will furnish to the Administrative
Agent and each Lender prompt written notice of the following:
(a) the
occurrence of any Default;
(b) the
filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting Holdings, the Borrower
or any Affiliate thereof that, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;
(c) 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 Holdings, the Borrower and their Subsidiaries in an aggregate amount
exceeding $1,000,000; and
(d) 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 Holdings or 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. Each of Holdings and 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, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business;
provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03.
SECTION
5.04. Payment
of Obligations. Each of Holdings and the Borrower will, and will
cause each of its Subsidiaries to, pay its Indebtedness and other
37
obligations,
including Tax liabilities, that, if not paid, would reasonably be expected
to
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 (in the case of Tax liabilities or obligations to
Government Authorities by appropriate proceedings), (b) Holdings, the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, (c) such contest effectively
suspends collection of the contested obligation and the enforcement of any
Lien
securing such obligation and (d) the failure to make payment pending such
contest would not reasonably be expected to result in a Material Adverse
Effect.
SECTION
5.05. Maintenance
of Properties. Each of Holdings and the Borrower will, and will
cause each of its Subsidiaries to, keep and maintain all property material
to
the conduct of its business in good working order and condition, ordinary wear
and tear excepted.
SECTION
5.06. Insurance. Each
of Holdings and the Borrower will, and will cause each of its Subsidiaries
to,
maintain with financially sound and reputable insurance companies adequate
insurance for its insurable properties, all to such extent and against such
risks, including fire, casualty and other risks insured against by extended
coverage, as is customary with companies in the same or similar businesses
operating in the same or similar locations.
SECTION
5.07. Books
and Records; Inspection and Audit Rights. Each of Holdings and
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. Each of Holdings and 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; provided that the Borrower shall be given the opportunity to
be present at any discussion with its independent accountants.
SECTION
5.08. Compliance
with Laws. Each of Holdings and 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
5.09. Use
of
Proceeds. The proceeds of the Loans will be used for general
corporate purposes, including to finance a portion of Holdings’s share
repurchase program. 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.
38
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, each of Holdings
and
the Borrower covenants and agrees with the Lenders that:
SECTION
6.01. Subsidiary
Indebtedness. The Borrower will not permit any Subsidiary of the
Borrower to create, incur, assume or permit to exist any Indebtedness (including
pursuant to any Guarantee of Indebtedness of Holdings, the Borrower or any
other
Subsidiary), except:
(a) Indebtedness
existing on the Revolving Effective Date and set forth in Schedule 6.01,
but not any extensions, renewals or replacements of any such
Indebtedness;
(b) Indebtedness
of any Subsidiary of the Borrower owing to the Borrower or any other Subsidiary
of the Borrower;
(c) Guarantees
by any Subsidiary of the Borrower of Indebtedness of any other Subsidiary of
the
Borrower; provided that the Indebtedness so Guaranteed is permitted by
this Section;
(d) Indebtedness
of any Subsidiary of the Borrower incurred to finance the acquisition,
construction or improvement of any fixed or capital assets after the Revolving
Effective Date, including Capital Lease Obligations and any Indebtedness assumed
in connection with the acquisition of any such assets or secured by a Lien
on
any such assets prior to the acquisition thereof, and extensions, renewals
and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof or result in an earlier maturity date or decreased
weighted average life thereof; provided that (i) such Indebtedness
is incurred prior to or within 270 days after such acquisition or the
completion of such construction or improvement and (ii) the aggregate
principal amount of Indebtedness permitted by this clause (d) (and that is
not listed in Schedule 6.01) and clause (e) below shall not exceed $100,000,000
at any time outstanding;
(e) Indebtedness
of (i) any Person that becomes a Subsidiary after the Revolving Effective
Date pursuant to a Permitted Acquisition to the extent that such Indebtedness
exists at the time such Person becomes a Subsidiary and is not created in
contemplation of or in connection with such Person becoming a Subsidiary and
(ii) a Subsidiary to the extent that such Indebtedness is assumed in
connection with a Permitted Acquisition made by such Subsidiary and is not
created in contemplation of such Permitted Acquisition; provided that the
aggregate principal amount of Indebtedness permitted by this clause (e) and
39
clause
(d) above shall be subject to the limitations set forth in clause (ii) of the
proviso at the end of clause (d) above;
and
(f) other
Indebtedness of Subsidiaries of the Borrower in an aggregate principal amount
at
any time outstanding not exceeding $75,000,000.
SECTION
6.02. Liens. (a) 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:
(i) Liens
created under the Loan Documents;
(ii) Permitted
Encumbrances;
(iii) any
Lien
on any property or asset of the Borrower or any Subsidiary existing on the
Revolving Effective Date and set forth in Schedule 6.02; 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;
(iv) any
Lien
existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary after the Revolving Effective Date or existing on
any
property or asset of any Person that becomes a Subsidiary after the Revolving
Effective Date prior to the time such Person becomes a Subsidiary;
provided that (A) 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, (B) such Lien shall not apply to any other property or assets
of the Borrower or any Subsidiary and (C) 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
(v) Liens
on
fixed or capital assets acquired, constructed or improved by the Borrower or
any
Subsidiary after the Revolving Effective Date; provided that
(A) such security interests secure Indebtedness incurred to finance the
acquisition, construction or improvement of such fixed or capital assets,
including Capital Lease Obligations and any Indebtedness assumed in connection
with the acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof, and extensions, renewals and replacements
of
any such Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted average
life
thereto (and, in the case of any such Indebtedness of a Subsidiary of the
Borrower, is Indebtedness permitted by Section 6.01), (B) such security
interests and the Indebtedness secured thereby are incurred prior to or within
270 days after such acquisition or the completion of such construction or
improvement, (C) the
40
Indebtedness
secured thereby does not exceed the cost (including design, engineering, sales
taxes, delivery, installation and other similar costs) of acquiring,
constructing or improving such fixed or capital assets and (D) such
security interests shall not apply to any other property or assets (other than
proceeds of the property and assets originally encumbered by such security
interests) of the Borrower or any Subsidiary; and
(vi) other
Liens securing Indebtedness or other monetary obligations of the Borrower or
any
Subsidiary (other than Liens on inventory); provided that the sum of all
Indebtedness and other monetary obligations at any time outstanding secured
by
Liens permitted by this clause (vi), plus the fair market value of all assets
sold after the Revolving Effective Date pursuant to Sale and Leaseback
Transactions in reliance on clause (b) of Section 6.07, shall not at any time
exceed $125,000,000.
(b) Holdings
will not create, incur, assume or permit to exist any Lien on any property
or
asset now owned or hereafter acquired by it (other than Excluded Margin Stock),
or assign or sell any income or revenues (including accounts receivable) or
rights in respect thereof, except Permitted Encumbrances.
SECTION
6.03. Fundamental
Changes. (a) Neither Holdings nor the Borrower will,
nor will they 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
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 Subsidiary may merge into the Borrower in a transaction in which
the Borrower is the surviving corporation, (ii) any Subsidiary (other than
the Borrower) may merge into any other Subsidiary (other than the Borrower)
in a
transaction in which the surviving entity is a Subsidiary, (iii) any Subsidiary
(other than the Borrower ) may liquidate or dissolve if 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, (vi) any
Subsidiary may merge with another entity to implement a Permitted Acquisition
and (v) any Subsidiary of the Borrower may merge with another entity to
implement a sale or other disposition of such Subsidiary otherwise permitted
by
this Agreement, provided that, after giving effect thereto, such Subsidiary
shall no longer be a Subsidiary; provided that any such merger involving
a Person that is not a wholly owned Subsidiary immediately prior to such merger
shall not be permitted unless also permitted by Section 6.04.
(b) The
Borrower will not, and will not permit any of its Subsidiaries to, engage to
any
material extent in any business other than businesses of the type conducted
by
the Borrower and its Subsidiaries on the Revolving Effective Date and businesses
reasonably related thereto.
(c) Holdings
will not engage in any business or activity other than the ownership of all
the
outstanding shares of capital stock of the Borrower and activities incidental
thereto, including the conduct of stock repurchase programs, administering
payrolls for executive officers and other activities incidental to its existence
as a publicly-
41
owned
holding company. Holdings will not own or acquire any assets (other
than shares of capital stock of the Borrower, cash, promissory notes held
pursuant to clause (g) of Section 6.04 and Permitted Investments) or
incur any liabilities (other than liabilities under the Loan Documents,
liabilities under the “Loan Documents” as such term is defined in the Revolving
Credit Agreement, liabilities imposed by law, including tax liabilities, and
other liabilities incidental to its existence and permitted business and
activities). Holdings will not have any Subsidiaries, other than the
Borrower and its Subsidiaries.
SECTION
6.04. Investments,
Loans, Advances, Guarantees and Acquisitions. The Borrower will
not, and will not permit any of its Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly owned
Subsidiary prior to such merger) any Equity Interests, evidences of indebtedness
or other securities (including any option, warrant or other right to acquire
any
of the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or
any
other interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit, except:
(a) Permitted
Investments;
(b) investments
existing on the Revolving Effective Date and set forth on Schedule 6.04, to
the extent such investments would not be permitted under any other clause of
this Section;
(c) investments
in the Equity Interests of their respective Subsidiaries;
(d) loans
or
advances made by the Borrower to any Subsidiary of the Borrower (or to Holdings)
and made by any Subsidiary of the Borrower to the Borrower or any other
Subsidiary of the Borrower;
(e) Guarantees
by the Borrower and its Subsidiaries of obligations of the Borrower or any
of
its Subsidiaries; provided that any such Guarantees by Subsidiaries of
the Borrower of obligations of the Borrower shall be limited to Guarantees
of
Indebtedness that are permitted by Section 6.01;
(f) investments
received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with, customers and suppliers, in each
case
in the ordinary course of business;
(g) promissory
notes received from employees of Holdings and its Subsidiaries evidencing loans
made for the purpose of permitting such employees to purchase capital stock
of
Holdings in an aggregate principal amount not exceeding $5,000,000 at any time
outstanding;
(h) Permitted
Acquisitions;
42
(i) loans
or
advances to employees in the ordinary course of business; provided that
the aggregate amount of all loans and advances permitted by this clause (i)
shall not exceed $750,000 at any time outstanding;
(j) obligations
of management to the Borrower in connection with split dollar life insurance
policies; provided that the aggregate amount of all obligations permitted
by this clause (j) shall not exceed $2,000,000 at any time
outstanding;
(k) investments
incurred in connection with Deferred Compensation Obligations; and
(l) other
investments in an aggregate amount not exceeding $50,000,000 at any time
outstanding.
SECTION
6.05. Swap
Agreements. Neither Holdings nor the Borrower will, nor will they
permit any Subsidiary to, enter into any Swap Agreement, except (a) Swap
Agreements entered into to hedge or mitigate risks to which Holdings, the
Borrower or any Subsidiary has actual exposure (other than those in respect
of
Equity Interests of Holdings, the Borrower or any of its Subsidiaries), and
(b) Swap Agreements entered into in order to effectively cap, collar or
exchange interest rates (from fixed to floating rates, from one floating rate
to
another floating rate or otherwise) with respect to any interest-bearing
liability or investment of Holdings, the Borrower or any
Subsidiary.
SECTION
6.06. Restrictive
Agreements. Neither Holdings nor the Borrower will, nor will they
permit any Subsidiary to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon (a) the ability of Holdings, the Borrower or
any Subsidiary to create, incur or permit to exist any Lien upon any of its
property or assets, or (b) the ability of any Subsidiary to pay dividends
or other distributions with respect to any of its Equity Interests 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 or by any Loan Document, (ii) the foregoing shall not apply to
restrictions and conditions existing on the Revolving Effective Date identified
on Schedule 6.06 (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions
and conditions contained in agreements relating to the sale of a Subsidiary
or
any asset or property pending such sale, provided such restrictions and
conditions apply only to the Subsidiary, asset or property that is to be sold
and such sale is permitted hereunder, (iv) clause (a) of the foregoing
shall not apply to restrictions or conditions imposed by any agreement relating
to secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness,
(v) clause (a) of the foregoing shall not apply to customary provisions in
leases, licenses, or other contracts restricting the assignment thereof and
(vi)
the foregoing shall not apply to restrictions and conditions imposed by the
Revolving Credit Agreement (as amended or extended from time to time),
provided that such restrictions
43
and
conditions are not more restrictive in any material respect than those set
forth
in this Agreement.
SECTION
6.07. Sale
and Leaseback Transactions. Neither Holdings nor the Borrower
will, nor will they permit any Subsidiary to, enter into any arrangement,
directly or indirectly, with any Person whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned
or
hereafter acquired, and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred (a “Sale and Leaseback Transaction”),
except for (a) any such Sale and Leaseback Transaction involving the sale
of fixed or capital assets (other than those acquired pursuant to a Permitted
Acquisition), at a price not less than the cost thereof, that is consummated
within 360 days after the date that such assets are acquired and
(b) other Sale and Leaseback Transactions consummated after the Revolving
Effective Date, subject to the limitations set forth in clause (vi) of Section
6.02(a).
SECTION
6.08. Leverage
Ratio. The Borrower will not permit the Leverage Ratio as of any
date to be in excess of 2.50 to 1.00.
SECTION
6.09. Consolidated
Coverage Ratio. The Borrower will not permit the Consolidated
Coverage Ratio for any period of four consecutive fiscal quarters (commencing
with the period ending on the last day of the first fiscal quarter ended after
the Effective Date) to be less than 2.25 to 1.00.
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 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;
(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 Agreement or any other Loan Document, when and as the same
shall become due and payable, and such failure shall continue unremedied for
a
period of three Business Days;
(c) any
representation or warranty made or deemed made by or on behalf of Holdings,
the
Borrower or any Subsidiary in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or
in
connection with any Loan Document or any amendment or modification thereof
or
waiver thereunder, shall prove to have been incorrect in any material respect
when made or deemed made;
44
(d) Holdings
or the Borrower shall fail to observe or perform any covenant, condition or
agreement contained in Section 5.02, 5.03 (with respect to the existence of
Holdings or the Borrower) or 5.09 or in Article VI;
(e) either
Loan Party shall fail to observe or perform any covenant, condition or agreement
contained in any Loan Document (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 to the Borrower
(which notice will be given at the request of any Lender);
(f) Holdings,
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;
(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 or without the giving
of notice, the lapse of time or both) the holder 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 secured
Indebtedness that becomes due as a result of the voluntary sale or transfer
of
the property or assets securing such Indebtedness;
(h) an
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed seeking (i) liquidation, reorganization or other relief in respect of
Holdings, the Borrower or any 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 Holdings, the Borrower or any 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) Holdings,
the Borrower or any 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 Holdings, the Borrower or any 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) Holdings,
the Borrower or any Subsidiary shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;
45
(k) one
or
more judgments for the payment of money in an aggregate amount in excess of
$25,000,000 shall be rendered against Holdings, the Borrower, any Subsidiary
or
any combination thereof and the same shall remain undischarged for a period
of
30 consecutive days during which execution shall not be effectively stayed,
or any action shall be legally taken by a judgment creditor (and such action
is
not effectively stayed) to attach or levy upon any assets of Holdings, the
Borrower or any Subsidiary to enforce any such judgment;
(l) 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 liability of the Borrower and its Subsidiaries in
an
aggregate amount exceeding (i) $3,000,000 in any year or
(ii) $5,000,000 for all periods; or
(m) a
Change
in Control shall occur;
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, 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
Each
of
the Lenders 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 of the Loan Documents, together with such actions and powers as are
reasonably incidental thereto.
The
bank
serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the
same
as though it were not the Administrative Agent, and such bank and its Affiliates
46
may
accept deposits from, lend money to and generally engage in any kind of business
with Holdings, the Borrower or any Subsidiary or other Affiliate thereof as
if
it were not the Administrative Agent hereunder.
The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents. 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 by the
Loan Documents that the Administrative Agent is required to exercise in writing
by the Required Lenders (or such other number or percentage of the Lenders
as
shall be necessary under the circumstances as provided in Section 9.02),
and (c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to Holdings, the
Borrower or any of its Subsidiaries that is communicated to or 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 such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02) or in the absence of
its own gross negligence or wilful misconduct. 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 Holdings, 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 any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder
or in
connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness
of any Loan Document or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Article IV or
elsewhere in any Loan Document, other than to confirm receipt of items expressly
required to be delivered to the 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.
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
47
Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each 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.
Subject
to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time
by
notifying the Lenders and the Borrower. Upon any such resignation,
the Required Lenders shall have the right, in consultation with the Borrower
(except that no consultation is required during an Event of Default), to appoint
a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New
York,
New York, or an Affiliate of any such bank. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges
and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent’s resignation hereunder,
the provisions of this Article and Section 9.03 shall continue in effect
for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as 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 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 Agreement, any other Loan Document
or
related agreement or any document furnished hereunder or
thereunder.
ARTICLE
IX
Miscellaneous
SECTION
9.01. Notices. (a) Except
in the case of notices and other communications expressly permitted to be given
by telephone (and subject to paragraph (b) below), 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:
48
(i) if
to
Holdings or the Borrower, to Advance Stores Company, Incorporated at 0000
Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000, Attention of Chief Financial
Officer (Telecopy No. (000) 000-0000);
(ii) if
to the
Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency Services
Group, 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention
of Xxxxxxx Xxxxx (Telecopy No. (000) 000-0000), with a copy to JPMorgan
Chase Bank, N.A., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx 00000,
Attention of Xxxxx Xxxxxxx (Telecopy No. (000) 000-0000); and
(iii) if
to any
Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
(b) Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to
notices pursuant to Article II unless otherwise agreed by the Administrative
Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications.
(c) 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 Agreement shall be deemed to have been given on the
date
of receipt.
SECTION
9.02. Waivers;
Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
or
under any other Loan Document 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 and the
Lenders hereunder and under the other Loan Documents are cumulative and are
not
exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of any Loan Document or consent to
any departure by either Loan Party 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 shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
(b) Neither
this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except, in the case of this Agreement,
pursuant to an agreement or agreements in writing entered into by Holdings,
the
Borrower and the Required Lenders or, in the case of any other Loan
49
Document,
pursuant to an agreement or agreements in writing entered into by the
Administrative Agent and the Loan Party or Loan Parties that are parties
thereto, in each case 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 reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any
Loan, 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
affected thereby, (iv) change Section 2.15(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 of any
Loan Document specifying the number or percentage of Lenders required to waive,
amend or modify any rights thereunder or make any determination or grant any
consent thereunder, without the written consent of each Lender, or
(vi) release Holdings from its Guarantee under the Guarantee Agreement, or
limit its liability in respect of such Guarantee, without the written consent
of
each Lender; providedfurther that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent
without the prior written consent of the Administrative
Agent. Notwithstanding the foregoing, any provision of this Agreement
may be amended by an agreement in writing entered into by Holdings, the
Borrower, the Required Lenders and the Administrative Agent if (i) by the terms
of such agreement the Commitment (if any) of each Lender not consenting to
the
amendment provided for therein shall terminate upon the effectiveness of such
amendment and (ii) at the time such amendment becomes effective, each Lender
not
consenting thereto receives payment in full of the principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued
for
its account under this Agreement.
SECTION
9.03. Expenses;
Indemnity; Damage Waiver. (a) The Borrower shall pay
(i) all reasonable out-of-pocket expenses incurred by the Arrangers, the
Administrative Agent, the Syndication Agent and their Affiliates, including
the
reasonable fees, charges and disbursements of counsel for the Arrangers, the
Administrative Agent and the Syndication Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of the Loan Documents or any amendments, modifications or waivers
of the provisions thereof (whether or not the transactions contemplated hereby
or thereby shall be consummated) and (ii) all out-of-pocket expenses
incurred by the Administrative Agent, including the fees, charges and
disbursements of any counsel for the Administrative Agent, in connection with
the enforcement or protection of its rights in connection with the Loan
Documents, including its rights under this Section, or in connection with the
Loans made hereunder, including all such out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such
Loans.
(b) The
Borrower shall indemnify each Arranger, the Administrative Agent, the
Syndication Agent and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold
50
each
Indemnitee harmless from, any and all losses, claims, damages, liabilities
and
related expenses, including the fees, charges and disbursements of any 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
any Loan Document or any other agreement or instrument contemplated hereby,
the
performance by the parties to the Loan Documents of their respective obligations
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or the use of the proceeds therefrom,
(iii) any actual or alleged presence or release of Hazardous Materials on
or from any property currently or formerly owned or operated by Holdings, the
Borrower or any of its Subsidiaries, or any Environmental Liability related
in
any way to Holdings, 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; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent
that
such losses, claims, damages, liabilities or related expenses resulted from
the
gross negligence or wilful misconduct of such Indemnitee.
(c) To
the
extent that the Borrower fails to pay any amount required to be paid by it
to
any Arranger, the Administrative Agent or the Syndication Agent under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to such Arranger, the Administrative Agent or the Syndication Agent, as the
case
may be, such Lender’s pro rata share (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 such Arranger, the Administrative Agent or the Syndication
Agent in its capacity as such. For purposes hereof, a Lender’s “pro
rata share” shall be determined based upon its share of the sum of the total
outstanding Loans and unused Commitments at the time.
(d) To
the
extent permitted by applicable law, neither Holdings nor the Borrower shall
assert, and each 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 Agreement or any agreement or instrument contemplated hereby,
the Transactions, any Loan 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 Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that (i) the
Borrower may not 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 without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing
in this Agreement, expressed or implied, shall be construed to confer
51
upon
any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants (to the extent provided in paragraph (c) of
this Section) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this
Agreement.
(b) (i) Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans
at the time owing to it) with the prior written consent (such consent not to
be
unreasonably withheld) of:
(A) the
Borrower, provided that no consent of the Borrower shall be required for
an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if
an
Event of Default has occurred and is continuing, any other assignee;
and
(B) the
Administrative Agent.
(ii) Assignments
shall be subject to the following additional conditions:
(A) except
in
the case of an assignment to a Lender or an Affiliate or Approved Fund of a
Lender or an assignment of the entire remaining amount of the assigning Lender’s
Commitment and outstanding Loans, the amount of the Commitment and outstanding
Loans of the assigning Lender subject to each such assignment (determined as
of
the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $1,000,000 unless
each of the Borrower and the Administrative Agent otherwise consent,
provided that no such consent of the Borrower shall be required if an
Event of Default has occurred and is continuing;
(B) each
partial assignment shall be made as an assignment of a proportionate part of
all
the assigning Lender’s rights and obligations under this Agreement;
(C) the
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment and Assumption, together with a processing and recordation fee
of
$3,500; and
(D) the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent
an Administrative Questionnaire in which the assignee designates one or more
Credit Contacts to whom all syndicate-level information (which may contain
material non-public information about the Borrower, the Loan Parties and their
Related Parties or their respective securities) will be made available and
who may receive such information in accordance with the assignee’s compliance
procedures and applicable laws, including Federal and state securities
laws.
52
For
the
purposes of this Section 9.04(b), the term “Approved Fund” has the
following meaning:
“Approved
Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions
of
credit in the ordinary course of its business and that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or
an Affiliate of an entity that administers or manages a Lender.
(iii) Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent
of
the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and
Assumption, be released from its obligations under this Agreement (and, in
the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be
a
party hereto but shall continue to be entitled to the benefits of
Sections 2.12, 2.13, 2.14 and 9.03). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this Section 9.04 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (c) of this Section.
(iv) The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall
maintain at one of its offices in the City of New York a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of
the
Loans owing to, each Lender pursuant to the terms hereof from time to time
(the
“Register”). The entries in the Register shall be conclusive,
and the Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the
Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(v) Upon
its
receipt of a duly completed Assignment and Assumption 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 Assumption
and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has
been
recorded in the Register as provided in this paragraph.
53
(c) (i) Any
Lender may, without the consent of the Borrower or the Administrative Agent,
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 Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (C) the Borrower, the Administrative Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this
Agreement. 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 the Loan Documents and to approve any amendment, modification
or waiver of any provision of the Loan Documents; 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 (c)(ii) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.12, 2.13 and 2.14 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 9.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.15(c) as though
it were a Lender.
(ii) A
Participant shall not be entitled to receive any greater payment under
Section 2.12 or 2.14 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 2.14 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 2.14(e) as though it were a Lender.
(d) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender,
including without limitation any pledge or assignment to secure obligations
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 pledgee or assignee for such Lender
as a party hereto.
(e) Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (an “SPV”),
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 this Agreement, provided that
(i) nothing herein shall constitute a commitment by any SPV to make any
Loan and (ii) if an SPV elects not to exercise such
54
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 SPV hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Loan
were
made by such Granting Lender. Each party hereto hereby agrees that no
SPV shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of
all
outstanding commercial paper or other senior indebtedness of any SPV, it will
not institute against, or join any other person in instituting against, such
SPV
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States of America or any State
thereof. In addition, notwithstanding anything to the contrary in
this Section 9.04, any SPV may (i) with notice to, but without the
prior written consent of, the Borrower and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests
in
any Loans to the Granting Lender or to any financial institutions (consented
to
by the Borrower and the Administrative Agent) providing liquidity and/or credit
support to or for the account of such SPV to support the funding or maintenance
of 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 any surety, guarantee or credit or liquidity enhancement to
such
SPV. As this Section 9.04(e) applies to any particular SPV, this
Section may not be amended without the written consent of such SPV.
SECTION
9.05. Survival. All
covenants, agreements, representations and warranties made by the Loan Parties
in the Loan Documents and in the certificates or other instruments delivered
in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of
any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent 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 Agreement is outstanding and
unpaid and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.12, 2.13, 2.14 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 Commitments or
the
termination of this Agreement or any provision hereof.
SECTION
9.06. Counterparts;
Integration; Effectiveness. This 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 Agreement, the other Loan
Documents 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
55
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 Agreement shall 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 Agreement by electronic transmission shall be effective as delivery of
a
manually executed counterpart of this Agreement.
SECTION
9.07. Severability. Any
provision of this 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 and each of its Affiliates is hereby authorized at
any
time and from time to time, to the fullest extent permitted by law, to set
off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other obligations at any time owing by such
Lender or Affiliate 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 Agreement held by such Lender, irrespective of whether or not such Lender
shall have made any demand under this 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 Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Each
of
Holdings and the Borrower 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
any
Loan Document, 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 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 Agreement or any other Loan Document shall
affect any right that the Administrative Agent or any Lender may otherwise
have
to bring any action or
56
proceeding
relating to this Agreement or any other Loan Document against Holdings, the
Borrower or its properties in the courts of any jurisdiction.
(c) Each
of
Holdings and the Borrower 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 Agreement or any other Loan Document 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 Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement
or any other Loan Document will affect the right of any party to this 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, ANY OTHER LOAN DOCUMENT 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 Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION
9.12. Confidentiality. Each
of the Administrative Agent 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' 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 required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement
containing provisions
57
substantially
the same as those of this Section, to (i) any assignee of or Participant
in, or any prospective assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating
to
the Borrower and its obligations, (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 or any Lender on a non-confidential basis
from a source other than the Borrower.
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 or any Lender on
a
non-confidential 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.
EACH
LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN
SECTION 9.12 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE
MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES
OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT
WILL
HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES
AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
ALL
INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE
BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF
ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY
CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER, THE LOAN PARTIES
AND
THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY,
EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT
HAS
IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE
INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE
WITH
ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE
SECURITIES LAWS.
SECTION
9.13. Interest
Rate Limitation. Notwithstanding anything herein to the contrary,
if at any time the interest rate applicable to any Loan, together with all
fees,
charges and other amounts which are treated as interest on such Loan under
applicable law (collectively, the “Charges”), shall exceed the maximum
lawful rate (the “Maximum Rate”) which may be contracted for, charged,
taken, received or reserved by
58
the
Lender holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all Charges payable
in
respect thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the interest and Charges that would have been payable in respect of such Loan
but were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received
by such Lender.
SECTION
9.14. USA
Patriot Act. Each Lender hereby notifies each of the Borrower and
Holdings that pursuant to the requirements of the USA Patriot Act (Title III
of
Pub. L. 107-56 (signed into law October 26, 2001)), (the “Act”), it
is required to obtain, verify and record information that identifies each of
the
Borrower and Holdings, which information includes the name and address of each
of the Borrower and Holdings and other information that will allow such Lender
to identify each of the Borrower and Holdings in accordance with the
Act.
59
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
ADVANCE
AUTO PARTS, INC.,
|
|||
by | |||
/s/ Xxxxxxx X. Xxxxx | |||
Name: Xxxxxxx X. Xxxxx | |||
Title: Executive
Vice President, Chief Financial
Officer
|
ADVANCE
STORES COMPANY,
INCORPORATED,
|
|||
by | |||
/s/ Xxxxxxx X. Xxxxx | |||
Name: Xxxxxxx X. Xxxxx | |||
Title: Executive
Vice President, Chief Financial
Officer
|
JPMORGAN
CHASE BANK, N.A.,
individually
and as Administrative Agent,
|
|||
by | |||
/s/ Xxxxx Xxxxxxx | |||
Name: Xxxxx Xxxxxxx | |||
Title: Managing Director |
[LENDERS],
|
|||
by | |||
Name: | |||
Title: |