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EXHIBIT 10(o)
CREDIT AGREEMENT
among
XXXXXX XXXXXX, INC.
as a Borrower and as Guarantor
CERTAIN OF ITS FOREIGN SUBSIDIARIES
as Designated Borrowers
VARIOUS LENDERS
NATIONSBANK, N.A.
as Administrative Agent
NBD BANK
as Syndication Agent
and
FIRST UNION NATIONAL BANK
THE HUNTINGTON NATIONAL BANK
and
WACHOVIA BANK, N.A.
as Co-Agents
Dated as of April 16, 1999
NATIONSBANC XXXXXXXXXX SECURITIES LLC
Lead Arranger and Book Manager
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS, ETC.......................................................................................1
SECTION 1.1 Definitions..................................................................................1
SECTION 1.2 General.....................................................................................20
SECTION 1.3 Other Definitions and Provisions............................................................20
SECTION 1.4 Currency Equivalents Generally..............................................................21
SECTION 1.5 Introduction of Euro; National Currency Unit Advances; Etc..................................21
ARTICLE II CREDIT FACILITIES....................................................................................22
SECTION 2.1 Amount and Terms of Credit..................................................................22
SECTION 2.2 Procedure for Advances of Revolving Credit Loans............................................23
SECTION 2.3 Repayment of Loans..........................................................................24
SECTION 2.4 Revolving Credit Notes......................................................................25
SECTION 2.5 Competitive Bid Loans and Procedure.........................................................26
SECTION 2.6 Swingline Loans and Procedure...............................................................29
SECTION 2.7 Commitment Reductions and Increases.........................................................32
SECTION 2.8 Termination; Extension Options..............................................................34
SECTION 2.9 Utilization of Revolving Commitments in Offshore Currencies................................35
SECTION 2.10 Designated Borrowers.......................................................................36
ARTICLE III LETTER OF CREDIT FACILITY...........................................................................37
SECTION 3.1 L/C Commitment..............................................................................37
SECTION 3.2 Procedure for Issuance of Letters of Credit.................................................38
SECTION 3.3 Fees and Other Charges......................................................................38
SECTION 3.4 L/C Participations..........................................................................39
SECTION 3.5 Reimbursement Obligation of the Borrowers...................................................40
SECTION 3.6 Obligations Absolute........................................................................40
SECTION 3.7 Effect of L/C Application...................................................................41
ARTICLE IV GENERAL LOAN PROVISIONS..............................................................................41
SECTION 4.1 Interest....................................................................................41
SECTION 4.2 Conversion and Continuation of Revolving Credit Loans.......................................43
SECTION 4.3 Facility Fees...............................................................................44
SECTION 4.4 Manner of Payment...........................................................................45
SECTION 4.5 Crediting of Payments and Proceeds..........................................................45
SECTION 4.6 Adjustments.................................................................................46
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption by the
Administrative Agent....................................................................................46
SECTION 4.8 Changed Circumstances.......................................................................47
SECTION 4.9 Indemnity...................................................................................50
SECTION 4.10 Capital Requirements.......................................................................51
SECTION 4.11 Taxes......................................................................................51
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING..........................................................53
SECTION 5.1 Closing.....................................................................................53
SECTION 5.2 Conditions to Closing.......................................................................54
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SECTION 5.3 Conditions to All Extensions of Credit......................................................56
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES.................................................57
SECTION 6.1 Representations and Warranties..............................................................57
SECTION 6.2 Survival of Representations and Warranties, Etc.............................................64
ARTICLE VII FINANCIAL INFORMATION AND NOTICES...................................................................65
SECTION 7.1 Financial Statements........................................................................65
SECTION 7.2 Officer's Compliance Certificate............................................................66
SECTION 7.3 Accountants'Certificate.....................................................................66
SECTION 7.4 Other Reports...............................................................................66
SECTION 7.5 Notice of Litigation and Other Matters......................................................66
SECTION 7.6 Accuracy of Information.....................................................................67
ARTICLE VIII AFFIRMATIVE COVENANTS..............................................................................67
SECTION 8.1 Preservation of Corporate Existence and Related Matters.....................................68
SECTION 8.2 Maintenance of Property.....................................................................68
SECTION 8.3 Insurance...................................................................................68
SECTION 8.4 Accounting Methods and Financial Records....................................................68
SECTION 8.5 Payment and Performance of Obligations......................................................68
SECTION 8.6 Compliance With Laws and Approvals..........................................................69
SECTION 8.7 Environmental Laws..........................................................................69
SECTION 8.8 Compliance with ERISA.......................................................................69
SECTION 8.9 Conduct of Business.........................................................................70
SECTION 8.10 Visits and Inspections.....................................................................70
SECTION 8.11 Use of Proceeds............................................................................70
SECTION 8.12 Year 2000 Compatibility....................................................................70
ARTICLE IX NEGATIVE COVENANTS...................................................................................70
SECTION 9.1 Financial Covenants.........................................................................71
SECTION 9.2 Limitations on Liens........................................................................71
SECTION 9.3 Limitations on Mergers and Liquidation......................................................72
SECTION 9.4 Limitations on Sale or Transfer of Assets...................................................72
SECTION 9.5 Prohibitions on Limitations on Dividends and Distributions..................................73
SECTION 9.6 Transactions with Affiliates................................................................73
SECTION 9.7 Certain Accounting Changes..................................................................73
SECTION 9.8 Amendments; Payments and Prepayments of Subordinated Debt...................................74
SECTION 9.9 Sale Leaseback Transactions.................................................................74
ARTICLE X GUARANTY OF THE COMPANY...............................................................................74
SECTION 10.1 Guaranty of Payment........................................................................74
SECTION 10.2 Obligations Unconditional..................................................................74
SECTION 10.3 Modifications..............................................................................75
SECTION 10.4 Waiver of Rights...........................................................................76
SECTION 10.5 Reinstatement..............................................................................76
SECTION 10.6 Remedies...................................................................................76
SECTION 10.7 Limitation of Guaranty.....................................................................76
ARTICLE XI DEFAULT AND REMEDIES.................................................................................77
SECTION 11.1 Events of Default..........................................................................77
SECTION 11.2 Remedies...................................................................................80
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc............................................81
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ARTICLE XII THE ADMINISTRATIVE AGENT............................................................................81
SECTION 12.1 Appointment................................................................................81
SECTION 12.2 Delegation of Duties.......................................................................82
SECTION 12.3 Exculpatory Provisions.....................................................................82
SECTION 12.4 Reliance by the Administrative Agent.......................................................82
SECTION 12.5 Notice of Default..........................................................................83
SECTION 12.6 Non-Reliance on the Administrative Agent and Other Lenders.................................83
SECTION 12.7 Indemnification............................................................................84
SECTION 12.8 The Administrative Agent in Its Individual Capacity........................................84
SECTION 12.9 Resignation of the Administrative Agent; Successor Administrative Agent...................84
SECTION 12.10 Co-Agents.................................................................................85
ARTICLE XIII MISCELLANEOUS......................................................................................85
SECTION 13.1 Notices....................................................................................85
SECTION 13.2 Expenses, Indemnity........................................................................86
SECTION 13.3 Set-off....................................................................................87
SECTION 13.4 Governing Law..............................................................................87
SECTION 13.5 Consent to Jurisdiction....................................................................87
SECTION 13.6 Waiver of Jury Trial.......................................................................88
SECTION 13.7 Reversal of Payments.......................................................................88
SECTION 13.8 Judgment Currency..........................................................................88
SECTION 13.9 Accounting Matters.........................................................................89
SECTION 13.10 Successors and Assigns; Participations; Confidentiality...................................89
SECTION 13.11 Amendments, Waivers and Consents..........................................................93
SECTION 13.12 Performance of Duties.....................................................................93
SECTION 13.13 All Powers Coupled with Interest..........................................................93
SECTION 13.14 Several Obligations of the Borrowers......................................................94
SECTION 13.15 Subordination of Company's Claims Against the Designated Borrowers........................94
SECTION 13.16 Survival of Indemnities...................................................................94
SECTION 13.17 Titles and Captions.......................................................................94
SECTION 13.18 Severability of Provisions................................................................94
SECTION 13.19 Counterparts..............................................................................94
SECTION 13.20 Term of Agreement.........................................................................95
SECTION 13.21 Inconsistencies with Other Documents; Independent Effect of Covenants.....................95
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CREDIT AGREEMENT dated as of April 16, 1999 among XXXXXX XXXXXX, INC.,
a Michigan corporation (the "Company"), certain of the Company's Foreign
Subsidiaries from time to time party hereto (each a "Designated Borrower," and
together with the Company, the "Credit Parties," and each, a "Credit Party"),
the Lenders from time to time party hereto, NATIONSBANK, N.A., as Administrative
Agent, NBD BANK, as Syndication Agent and FIRST UNION NATIONAL BANK, THE
HUNTINGTON NATIONAL BANK and WACHOVIA BANK, N.A., as Co-Agents (all capitalized
terms used herein and defined in Section 1.1 are used herein as therein
defined).
STATEMENT OF PURPOSE
WHEREAS, the Credit Parties wish to establish with the Lenders credit
facilities providing for revolving loans and letters of credit of, initially, up
to $300,000,000 in the aggregate maximum principal amount at any time
outstanding, with the option to increase such facilities to up to $400,000,000
in the aggregate maximum principal amount at any time outstanding, and the
Lenders and the Administrative Agent are willing to establish such credit
facilities on the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS, ETC.
SECTION 1.1 DEFINITIONS.
The following terms when used in this Agreement shall have the meanings
assigned to them below:
"364 Day Facility" means the short term revolving credit facility
established pursuant to Section 2.1 hereof.
"364 Day Facility Commitment" means (a) as to any Lender, the
obligation of such Lender to make Revolving Credit Loans under the 364 Day
Facility for the accounts of the Borrowers in an aggregate principal Dollar
Equivalent amount at any time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule 1.1(a) hereto, as such amount may be
increased, reduced or modified at any time or from time to time pursuant to the
terms hereof and (b) as to all Lenders, the aggregate 364 Day Facility
Commitment of all Lenders to make Revolving Credit Loans under the 364 Day
Facility, as such amount may be increased, reduced or modified at any time or
from time to time pursuant to the terms hereof.
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The 364 Day Facility Commitment of all Lenders on the Closing Date shall be One
Hundred and Fifty Million Dollars ($150,000,000).
"364 Day Facility Commitment Percentage" means, as to any Lender at any
time, the ratio of (a) the amount of the 364 Day Facility Commitment of such
Lender to (b) the aggregate 364 Day Facility Commitment of all of the Lenders.
"364 Day Facility Fee" shall have the meaning assigned thereto in
Section 4.3(a).
"364 Day Facility Specified Maturity Date" means April 15, 2000 or such
later date as determined pursuant to Section 2.8(c).
"364 Day Facility Termination Date" means the earliest of the dates
referred to in Section 2.8(a).
"Administrative Agent" means NationsBank in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 12.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1(c).
"Affiliate" means, with respect to any Person, any other Person (other
than a Subsidiary) which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person or any of its Subsidiaries. The term "control" means the
possession, directly or indirectly, of any power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"Aggregate Revolving Credit Commitment" means (a) as to any Lender, the
aggregate of such Lender's 364 Day Facility Commitment and Five Year Facility
Commitment, as such amount may be increased, reduced or modified at any time or
from time to time pursuant to the terms hereof and (b) as to all Lenders, the
aggregate 364 Day Facility Commitment and Five Year Facility Commitment of all
Lenders, as such amount may be increased, reduced or modified at any time or
from time to time pursuant to the terms hereof. The Aggregate Revolving Credit
Commitment of all Lenders on the Closing Date shall be Three Hundred Million
Dollars ($300,000,000).
"Aggregate Revolving Credit Commitment Percentage" means, as to any
Lender at any time, the ratio of (a) such Lender's Aggregate Revolving Credit
Commitment to (b) the Aggregate Revolving Credit Commitment of all of the
Lenders.
"Agreed Alternative Currency" shall have the meaning assigned thereto
in Section 2.9(e).
"Agreement" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified.
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"Applicable Currency" means, as to any particular Revolving Credit
Loan, Competitive Bid Loan or payment, Dollars or the Offshore Currency in which
such Loan or payment is denominated or is payable.
"Applicable Law" means all applicable provisions of constitutions,
laws, statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of Governmental Authorities and all orders
and decrees of all courts and arbitrators.
"Applicable Percentage" means, for purposes of calculating (a) the
interest rate applicable to Offshore Rate Loans for purposes of Section 4.1(a);
(b) the L/C Fee for purposes of Section 3.3(a); (c) the Facility Fees for
purposes of Section 4.3; or (d) the Utilization Fee for purposes of Section
4.1(f), the rate set forth below opposite the applicable Leverage Ratio then in
effect:
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Offshore
Rate
Offshore Loans All-In All-In
Rate under the Cost Cost
Loans Facility Five Year Facility Both Both
under the Fee for Facility Fee for Facilities Facilities
Pricing 364 Day 364 Day and L/C Five Year at < 50% Utilization at > 50%
Level Leverage Ratio Facility Facility Fee Facility Usage Fee Usage
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I < 0.25 to 1.0 0.300% 0.075% 0.250% 0.125% 0.375% 0.125% 0.500%
-
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II > 0.25 to 1.0 but 0.400% 0.100% 0.350% 0.150% 0.500% 0.125% 0.625%
< 1.00 to 1.0
-
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III > 1.00 to 1.0 but 0.500% 0.125% 0.450% 0.175% 0.625% 0.125% 0.750%
< 1.75 to 1.0
-
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IV > 1.75 to 1.0 but 0.600% 0.150% 0.550% 0.200% 0.750% 0.125% 0.875%
< 2.50 to 1.0
-
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V > 2.5 to 1.0 0.800% 0.200% 0.750% 0.250% 1.000% 0.125% 1.125%
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The Applicable Percentage shall be determined and adjusted quarterly on the date
(each a "Rate Determination Date") five (5) Business Days after the date by
which the annual or quarterly compliance certificates, as applicable, and
related financial statements and information are required in accordance with the
provisions of Sections 7.1(a) and (b) and Section 7.2, as appropriate; provided
that:
(i) the initial Applicable Percentages shall be based on
Pricing Level II and shall remain in effect at such Pricing Level until
the first Rate Determination Date to occur after the Closing Date, and
(ii) in the event an annual or quarterly compliance
certificate and related financial statements and information are not
delivered timely to the Administrative Agent's Office by the date
required by Sections 7.1(a) and (b) and Section 7.2, as appropriate (a
"Non-Delivery Event"), the Applicable Percentages shall be based on the
applicable Pricing Level set forth below until such time as an
appropriate compliance certificate and related financial statements and
information are delivered, whereupon the
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applicable Pricing Level shall be adjusted (retroactive to the
immediately preceding Rate Determination Date) based on the information
contained in such compliance certificate and related financial
statements and information:
(A) for the period from the Rate Determination Date occurring
immediately following such Non-Delivery Event until the date that is
fifteen (15) days following such Non-Delivery Event, the Pricing Level
in effect immediately prior to such Rate Determination Date; and
(B) thereafter, Pricing Level V.
Each Applicable Percentage shall be effective from a Rate Determination Date
until the next such Rate Determination Date. The Administrative Agent shall
determine the appropriate Applicable Percentages in the pricing matrix promptly
upon receipt of the quarterly or annual compliance certificate and related
financial information and shall promptly notify the Company and the Lenders of
any change thereof. Such determinations by the Administrative Agent shall be
conclusive absent manifest error. Adjustments in the Applicable Percentages
shall be effective as to existing Extensions of Credit as well as any new
Extension of Credit made thereafter.
"Applicant Borrower" shall have the meaning assigned thereto in Section
2.10(a).
"Arranger" means NationsBanc Xxxxxxxxxx Securities LLC in its capacity
as Lead Arranger and Book Manager for the Credit Facility.
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 13.10(b)(iii).
"Australian Dollars" means the unit of currency of Australia.
"Available EMU Currency" means Deutsche Marks, Dutch Guilders, French
Francs and Italian Lira.
"Bankruptcy Event" means any of the events set forth in Section
11.1(i), (j), (k) or (l), or any of those events which with the passage of time,
the giving of notice or any other condition, would constitute such an event, in
respect of any of the Credit Parties or any of their Material Subsidiaries.
"Base Rate" means, at any time, the higher of (a) the Prime Rate or (b)
the sum of (i) the Federal Funds Rate plus (ii) 1/2 of 1%; each change in the
Base Rate shall take effect simultaneously with the corresponding change or
changes in the Prime Rate or the Federal Funds Rate.
"Base Rate Loan" means any Loan denominated in Dollars and bearing
interest at a rate based upon the Base Rate as provided in Section 4.1(a).
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"Borrower Joinder Agreement" means a Borrower Joinder Agreement
executed by an Applicant Borrower, the Company and the Administrative Agent in
substantially the form of Exhibit E, as amended, restated, supplemented or
otherwise modified.
"Borrowers" means, collectively, the Company and the Designated
Borrowers; "Borrower" means any one of them.
"Business Day" shall, with respect to dates for the payment or purchase
of any amount denominated in euro or National Currency Units (including without
limitation dates for determining LIBOR for such amount), be deemed to mean a
TARGET Business Day. The definition of "Business Day" shall, for all other
purposes, including without limitation the giving and receiving of notices
hereunder for Offshore Currency Loans denominated in euro or National Currency
Units, be deemed to mean a TARGET Business Day on which banks are generally open
for business in London, Frankfurt, Charlotte, North Carolina and/or in any other
principal financial center as the Administrative Agent shall from time to time
determine for this purpose.
"Canadian Dollars" means the unit of currency of Canada.
"Capital Lease" means, with respect to any Person, any lease of any
property that should, in accordance with GAAP, be classified and accounted for
as a capital lease on a Consolidated balance sheet of such Person and its
Consolidated Subsidiaries.
"Change in Control" shall have the meaning assigned thereto in Section
11.1(h).
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Section 5.1 and Section 5.2 shall be
satisfied or waived in all respects.
"Co-Agents" means First Union National Bank, The Huntington National
Bank and Wachovia Bank, N.A. in their capacities as Co-Agents hereunder.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended, supplemented or otherwise modified from
time to time.
"Commitment" means, as to any Lender at any time, such Lender's 364 Day
Facility Commitment, Five Year Facility Commitment or Aggregate Revolving Credit
Commitment, as the context requires.
"Commitment Percentage" means, as to any Lender at any time, such
Lender's 364 Day Facility Commitment Percentage, Five Year Facility Commitment
Percentage or Aggregate Revolving Credit Commitment Percentage, as the context
requires.
"Company" means Xxxxxx Xxxxxx, Inc., a Michigan corporation.
"Competitive Bid" means an offer by a Lender to make a Competitive Bid
Loan in accordance with Section 2.5.
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"Competitive Bid Loans" means any Loan made pursuant to Section 2.5 and
all such Loans collectively as the context requires.
"Competitive Bid Rate" means the rate of interest per annum expressed
in multiples of l/100th of one percent offered with respect to any Competitive
Bid Loan offered by the Lender making such Competitive Bid.
"Competitive Bid Request" means a request by a Borrower for Competitive
Bids in accordance with Section 2.5.
"Consolidated" means, when used with reference to financial statements
or financial statement items of a Person and its Subsidiaries, such statements
or items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"Consolidated EBITDA" means, for any period, as applied to the Company
and its Consolidated Subsidiaries without duplication, the sum of the amounts
for such period of: (i) net income, (ii) interest expense, (iii) income tax
expense, (iv) depreciation expense and (v) amortization expense, all of the
foregoing as determined and computed on a Consolidated basis in accordance with
GAAP.
"Consolidated Interest Expense" means, for any period, for the Company
and its Consolidated Subsidiaries, all interest expense (whether paid or
accrued), including without limitation (a) the amortization of debt discount and
premium, (b) the interest component under Capital Leases and synthetic leases
and (c) the implied interest component, discount or other similar fees or
charges in connection with any asset securitization program, in each case
determined on a Consolidated basis in accordance with GAAP.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which, in accordance with GAAP, are consolidated with
those of the Company in its consolidated financial statements as of such date.
"Consolidated Total Assets" means, as of any date, the assets and
properties of the Company and its Consolidated Subsidiaries, determined on a
Consolidated basis in accordance with GAAP.
"Consolidated Total Debt" means, as of any date, all Debt of the
Company and its Consolidated Subsidiaries for borrowed money, including without
limitation (a) all obligations as lessee under Capital Leases and (b) any Debt
incurred in connection with an asset securitization program or otherwise as a
result of the sale of accounts receivable, in each case as determined on a
Consolidated basis in accordance with GAAP.
"Credit Facility" means the collective reference to the 364 Day
Facility, the Five Year Facility and the L/C Facility or any one of them, as the
context requires.
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"Credit Parties" means, collectively, the Company and any Designated
Borrowers; "Credit Party" means any one of them.
"Current SEC Reports" means the most recent report on Form 10-K, or any
successor form, and any amendments thereto filed by the Company with the
Securities and Exchange Commission (the "Commission") and any reports on Forms
10-Q and/or 8-K, or any successor forms, and any amendments thereto, filed by
the Company with the Commission after the date of such report on Form 10-K.
"Debt" of any Person means at any date, without duplication, the sum of
the following calculated in accordance with GAAP: (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon which interest payments
are customarily made, (c) all obligations of such Person under conditional sale
or other title retention agreements relating to property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business), (d)
all obligations of such Person issued or assumed as the deferred purchase price
of Property or services purchased by such Person (other than trade debt incurred
in the ordinary course of business and due within six months of the incurrence
thereof) which would appear as liabilities on a balance sheet of such Person,
(e) all obligations of such Person under take-or-pay or similar arrangements or
under commodities agreements, (f) all Debt of others secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on, or payable out of the proceeds of production from,
property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, provided that for purposes hereof the amount
of such Debt shall be limited to the greater of (i) the amount of such Debt as
to which there is recourse to such Person and (ii) the fair market value of the
property which is subject to the Lien, (g) all Support Obligations of such
Person, (h) the principal portion of all obligations of such Person under
Capital Leases, (i) all obligations of such Person in respect of Hedging
Agreements, (j) the maximum amount of all standby letters of credit issued or
bankers' acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent unreimbursed),
(k) all preferred stock issued by such Person and required by the terms thereof
to be redeemed, or for which mandatory sinking fund payments are due, by a fixed
date, (l) the outstanding attributed principal amount under any asset
securitization program and (m) the principal balance outstanding under any
synthetic lease, tax retention operating lease, off-balance sheet loan or
similar off-balance sheet financing product to which such Person is a party,
where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance with GAAP. The
Debt of any Person shall include the Debt of any partnership or joint venture in
which such Person is a general partner or a joint venturer, but only to the
extent to which there is recourse to such Person for payment of such Debt.
"Default" means any of the events specified in Section 11.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
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"Designated Borrower" means any Applicant Borrower that becomes a
Borrower under this Agreement in accordance with the provisions of Section 2.10.
"Determination Date" shall have the meaning assigned thereto in Section
2.9(a).
"Deutsche Xxxx" means the former national currency of the Federal
Republic of Germany.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Dollar Equivalent" means, at any time, (a) as to any amount
denominated in Dollars, the amount thereof at such time, and (b) as to any
amount denominated in an Offshore Currency, the equivalent amount in Dollars as
determined by the Administrative Agent at such time on the basis of the Spot
Rate for the purchase of Dollars with such Offshore Currency on the most recent
Determination Date provided for in Section 2.9(a).
"Dutch Guilders" means the former national currency of the Netherlands.
"Eligible Assignee" means, with respect to any assignment of the
rights, interest and obligations of a Lender hereunder, a Person that is at the
time of such assignment (a) a commercial bank organized under the laws of the
United States or any state thereof, having combined capital and surplus in
excess of $500,000,000, (b) a commercial bank organized under the laws of any
other country that is a member of the Organization of Economic Cooperation and
Development, or a political subdivision of any such country, having combined
capital and surplus in excess of $500,000,000, (c) a finance company, insurance
company or other financial institution which in the ordinary course of business
extends credit of the type extended hereunder and that has total assets in
excess of $l,000,000,000, (d) already a Lender hereunder (whether as an original
party to this Agreement or as the assignee of another Lender) or an Affiliate of
a Lender hereunder, (e) the successor (whether by transfer of assets, merger or
otherwise) to all or substantially all of the commercial lending business of the
assigning Lender, or (f) any other Person that has been approved in writing as
an Eligible Assignee by the Administrative Agent and, provided no Default or
Event of Default has occurred and is continuing, the Company.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of a
Borrower or any ERISA Affiliate or (b) has at any time within the preceding six
years been maintained for the employees of a Borrower or any current or former
ERISA Affiliate.
"EMU" means Economic and Monetary Union as contemplated in the Treaty
on European Union.
"EMU Legislation" means legislative measures of the European Council
(including without limitation European Council regulations) for the introduction
of, changeover to or operation of the euro.
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"Environmental Laws" means any and all federal, state, local and
foreign laws, statutes, ordinances, rules, regulations, permits, licenses,
approvals, binding interpretations and orders of courts or Governmental
Authorities, relating to the protection of human health or the environment,
including, but not limited to, requirements pertaining to the manufacture,
processing, distribution, use, treatment, storage, disposal, transportation,
handling, reporting, licensing, permitting, investigation or remediation of
Hazardous Materials.
"Environmental Permits" shall have the meaning assigned thereto in
Section 6.1(h).
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended, supplemented or otherwise
modified from time to time.
"ERISA Affiliate" means any Person who together with a Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"euro" means the single currency of Participating Member States of the
European Community.
"Eurodollar Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City and to which the
Administrative Agent or any Lender is then subject.
"European Community" means those European countries that are
signatories to the Treaty on European Union.
"Event of Default" means any of the events specified in Section 11.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Extensions of Credit" means, as to any Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Revolving Credit
Loans made by such Lender then outstanding, (b) such Lender's Five Year Facility
Commitment Percentage of the L/C Obligations then outstanding, (c) the aggregate
principal amount of all Competitive Bid Loans made by such Lender then
outstanding and (d) the aggregate principal amount of all Swingline Loans made
by such Lender then outstanding. "Extension of Credit" means, as to any Lender
(a) any component of such Lender's Extensions of Credit or (b) the making of, or
participation in, a Loan by such Lender or the issuance or extension of, or
participation in, a Letter of Credit by such Lender, as the context may require.
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
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"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be
the same as the rate for the most immediate preceding Business Day.
"Fiscal Year" means the fiscal year of the Company and its Subsidiaries
ending on or about May 30.
"Five Year Facility" means the multi-year revolving credit facility
established pursuant to Section 2.1 hereof.
"Five Year Facility Commitment" means (a) as to any Lender, the
obligation of such Lender to make Revolving Credit Loans under the Five Year
Facility for the accounts of the Borrowers in an aggregate principal Dollar
Equivalent amount at any time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule 1.1(a) hereto as such amount may be
increased, reduced or modified at any time or from time to time pursuant to the
terms hereof and (b) as to all Lenders, the aggregate Five Year Facility
Commitment of all Lenders to make Revolving Credit Loans under the Five Year
Facility, as such amount may be increased, reduced or modified at any time or
from time to time pursuant to the terms hereof. The Five Year Facility
Commitment of all Lenders on the Closing Date shall be One Hundred and Fifty
Million Dollars ($150,000,000).
"Five Year Facility Commitment Percentage" means, as to any Lender at
any time, the ratio of (a) the amount of the Five Year Facility Commitment of
such Lender to (b) the aggregate Five Year Facility Commitment of all of the
Lenders.
"Five Year Facility Fee" shall have the meaning assigned thereto in
Section 4.3(b).
"Five Year Facility Specified Maturity Date" means April 16, 2004 or
such later date as determined pursuant to Section 2.8(d).
"Five Year Facility Termination Date" means the earliest of the dates
referred to in Section 2.8(b).
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Company 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 Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by a Borrower or any one or more
of its Subsidiaries primarily for the benefit
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of employees of such Borrower or such Subsidiaries residing outside the United
States of America, which plan, fund or other similar program provides, or
results in, retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and which plan
is not subject to ERISA or the Code.
"Foreign Subsidiary" means each Subsidiary of the Company that is not
incorporated under the laws of the United States or any State or territory
thereof.
"French Francs" means the former national currency of the Republic of
France.
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis throughout the period indicated.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guaranteed Obligations" means, without duplication, all of the
obligations of the Designated Borrowers to the Lenders and the Administrative
Agent, whenever arising, under this Agreement, the Borrower Joinder Agreements
and the Notes (including, but not limited to, obligations with respect to
principal, interest and fees).
"Hazardous Materials" means any substances or materials (a) which are
or become regulated or defined as hazardous wastes, hazardous substances,
pollutants, contaminants, chemical substances or mixtures or toxic substances
under any Environmental Law, (b) which are toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful
to human health or the environment and are or become regulated by any
Governmental Authority, (c) the presence of which require investigation or
remediation under any Environmental Law, (d) the discharge or emission or
release of which requires a permit or license under any Applicable Law or other
Governmental Approval, or (e) which contain, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel,
natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to an interest
rate swap, collar, cap, floor or forward rate agreement, foreign currency
agreement or other agreement regarding the hedging of interest rate risk
exposure executed in connection with hedging the interest rate exposure of any
Person, and any confirming letter executed pursuant to such hedging agreement,
all as amended, restated or otherwise modified from time to time.
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"Interest Coverage Ratio" means, as of the last day of any fiscal
quarter, the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest
Expense, in each case for the period of four (4) consecutive fiscal quarters
ending as of such day.
"Interest Period" shall have the meaning assigned thereto in Section
4.1(b).
"Irrevocable Conversion Rate" with respect to any Available EMU
Currency, means the rate adopted and irrevocably fixed by the European Council
(in accordance with Article 109l(4) of the Treaty on European Union) on December
31, 1998 as the official exchange rate at which National Currency Units of such
Available EMU Currency shall be converted into euro, and euro shall be converted
into National Currency Units of such Available EMU Currency.
"Issuing Lender" means NBD Bank in its capacity as issuer of any Letter
of Credit, and any other Lender mutually acceptable and on terms satisfactory to
the Company and the Administrative Agent.
"Italian Lira" means the former national currency of Italy.
"Japanese Yen" means the unit of currency of Japan.
"L/C Application" means an application, in the form specified by any
Issuing Lender from time to time, requesting such Issuing Lender to issue a
Letter of Credit.
"L/C Commitment" means Ten Million Dollars ($10,000,000).
"L/C Facility" means the letter of credit facility established pursuant
to Article III hereof.
"L/C Fee" shall have the meaning assigned thereto in Section 3.3(a).
"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders
having a Five Year Facility Commitment other than the applicable Issuing Lender.
"Lender" means each Person executing this Agreement as a Lender as set
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 13.10(b), other than any
party hereto that ceases to be a party hereto pursuant to any Assignment and
Acceptance.
"Lender Default" means (a) the refusal (which has not been retracted)
or the failure of a Lender to make available its portion of any Mandatory
Borrowing or (b) a Lender having notified in writing the Borrowers and/or the
Administrative Agent that such Lender does not
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intend to comply with its obligations under Section 2.6(b), in the case of
either clause (a) or (b) as a result of any takeover or control of such Lender
by any Governmental Authority.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Aggregate Revolving Credit Commitment
Percentage of the Revolving Credit Loans.
"Letters of Credit" shall have the meaning assigned thereto in Section
3.1.
"Leverage Ratio" means, as of the last day of any fiscal quarter, the
ratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA for
the period of four (4) consecutive fiscal quarters ending as of such day.
"LIBOR" means, for any Offshore Rate Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100th of 1%) appearing on Telerate Page 3740 or 3750, as applicable (or any
successor or equivalent page), as the London interbank offered rate for deposits
in the Applicable Currency and in the approximate amount of the Loan to be made
or continued as, or converted into, such Offshore Rate Loan at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Telerate Page 3740 or 3750, as
applicable, the relevant rate shall be the arithmetic mean of all such rates. If
for any reason such rate is not available, the term "LIBOR" shall mean, for any
Offshore Rate Loan for any Interest Period therefor,
(a) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100th of 1%) appearing on Reuters Screen LIBO Page as the
London interbank offered rate for deposits in the Applicable Currency
and in the approximate amount of the Loan to be made or continued as,
or converted into, such Offshore Rate Loan at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO
Page, the relevant rate shall be the arithmetic mean of all such rates,
or
(b) if no rate is available on the Reuters Screen LIBO page,
then the rate determined by the Administrative Agent at which the
Applicable Currency in the approximate amount of the Loan to be made or
continued as, or converted into, such Offshore Rate Loan is offered by
leading banks in the London interbank market at approximately 11:00
a.m. (London time) two Business Days prior to the first day of the
applicable Interest Period (rounded upwards, if necessary, to the
nearest 1/100th of 1%).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, Capital Lease or other
title retention agreement relating to such asset.
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"Loan Documents" means, collectively, this Agreement, the Notes, the
L/C Applications, any Borrower Joinder Agreement and each other document,
instrument and agreement executed and delivered by any Credit Party, its
Subsidiaries or their counsel in connection with this Agreement or otherwise
referred to herein or contemplated hereby, all as may be amended, restated or
otherwise modified.
"Loans" means the collective reference to the Revolving Credit Loans,
the Competitive Bid Loans and the Swingline Loans; "Loan" means any one of such
Loans.
"Mandatory Borrowing" shall have the meaning assigned thereto in
Section 2.6(b).
"Material Adverse Effect" means any of (a) a material adverse effect on
the business, assets, liabilities (actual or contingent), operations, condition
(financial or otherwise) or financial prospects of the Credit Parties and their
Subsidiaries taken as a whole, (b) a material adverse effect on the ability of
any such Credit Party to perform its obligations under the Loan Documents, in
each case to which it is a party, or (c) a material adverse effect on the rights
or remedies of the Lenders or the Administrative Agent hereunder or under any
other Loan Document.
"Material Subsidiary" means a Subsidiary which is material to the
business, assets, liabilities (actual or contingent), operations or financial
condition of a Person and its Subsidiaries taken as a whole, including, without
limitation, a Subsidiary whose principal assets are one or more Material
Subsidiaries.
"MLA Cost" means an addition to the interest rate on a Revolving Credit
Loan to compensate any Lender for the cost imputed to a Lender in respect of any
Revolving Credit Loan made in an Offshore Currency during the term of such Loan
resulting from the imposition from time to time under or pursuant to the Bank of
England Act 1998 (the "Act") and/or by the Bank of England and/or the Financial
Services Authority (the "FSA") (or other United Kingdom governmental authorities
or agencies) of a requirement to place non-interest-bearing cash ratio deposits
or Special Deposits (whether interest bearing or not) with the Bank of England
and/or pay fees to the FSA calculated by reference to liabilities used to fund
the Revolving Credit Loan made in such Offshore Currency, as determined in
accordance with Schedule 4.1(f).
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which a Borrower or any ERISA Affiliate is making, has
made, is accruing or has accrued an obligation to make, contributions within the
preceding six years.
"National Currency Unit" means a fraction or multiple of one euro
expressed in units of an Available EMU Currency. Offshore Currency Loans
requested to be denominated in National Currency Units shall be available only
in accordance with Section 1.5.
"NationsBank" means NationsBank, N.A., a national banking association,
and its successors.
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"NBD Bank" means NBD Bank, a Michigan banking corporation, and its
successors, together with any of its affiliates and branches.
"Notes" means the collective reference to the Revolving Credit Notes;
"Note" means any one of such Notes.
"Notice of Account Designation" shall have the meaning assigned thereto
in Section 2.2(b).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 4.2.
"Notice of Prepayment" shall have the meaning assigned thereto in
Section 2.3(c).
"Notice of Revolving Credit Borrowing" shall have the meaning assigned
thereto in Section 2.2(a).
"Notice of Swingline Borrowing" shall have the meaning assigned thereto
in Section 2.6(d).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
all payment and other obligations owing by the Credit Parties to any Lender or
Affiliate of a Lender or the Administrative Agent under any Hedging Agreement
with any Lender or Affiliate of a Lender (which such Hedging Agreement is
permitted hereunder), and (c) all other fees and commissions (including
attorney's fees), charges, indebtedness, loans, liabilities, financial
accommodations, obligations, covenants and duties owing by the Credit Parties to
the Lenders or the Administrative Agent, of every kind, nature and description,
direct or indirect, absolute or contingent, due or to become due, contractual or
tortious, liquidated or unliquidated, and whether or not evidenced by any note,
in each case under or in respect of this Agreement, any Note, or any of the
other Loan Documents.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 7.2.
"Offshore Currency" means (a) with respect to Revolving Credit Loans,
euro, any National Currency Unit, Sterling, Japanese Yen and any Agreed
Alternative Currency determined in accordance with Section 2.9(e) and (b) with
respect to Competitive Bid Loans, Canadian Dollars and Australian Dollars.
"Offshore Currency Loan" means any Offshore Rate Loan or Competitive
Bid Loan denominated in an Offshore Currency.
"Offshore Rate" means, for any Interest Period, with respect to an
Offshore Rate Loan, the rate of interest per annum (rounded upward to the next
1/100th of 1%) determined by the Administrative Agent as follows:
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Offshore Rate = LIBOR
-----------------------------------
. 1.00- Eurodollar Reserve Percentage
The Offshore Rate shall be adjusted automatically as to all Offshore Rate Loans
then outstanding as of the effective date of any change in the Eurodollar
Reserve Percentage.
"Offshore Rate Loan" means a Revolving Credit Loan or a Swingline Loan
bearing interest at a rate based upon the Offshore Rate as provided in Section
4.1(a) and, if a Revolving Credit Loan, may be an Offshore Currency Loan or a
Revolving Credit Loan denominated in Dollars.
"Operating Lease" shall mean, as to any Person, as determined in
accordance with GAAP, any lease of property (whether real, personal or mixed) by
such Person as lessee which is not a Capital Lease.
"Other Taxes" shall have the meaning assigned thereto in Section
4.11(b).
"Participating Member State" means each country so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and is maintained for the employees of a Borrower or any
of its ERISA Affiliates.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"Prime Rate" means, at any time, the rate of interest per annum
established from time to time by NationsBank as its prime rate in effect at its
principal office in Charlotte, North Carolina. Each change in the Prime Rate
shall be effective as of the opening of business on the day such change in the
Prime Rate occurs. The parties hereto acknowledge that the rate established by
NationsBank as its Prime Rate is an index or base rate and shall not necessarily
be its lowest or best rate charged to its customers or other banks.
"Prior Bank Commitments" means the Company's committed credit
facilities with domestic lenders as of the Closing Date, which consist of those
certain revolving credit facilities made available to the Company on February
28, 1997 by (a) NationsBank, N.A. in the amount of $30,000,000, (b) Bank of
America Illinois in the amount of $35,000,000 and (c) NBD Bank in the amount of
$35,000,000.
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"Real Property" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
leaseholds.
"Reimbursement Obligation" means the obligation of a Borrower to
reimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit issued at the request of such Borrower.
"Register" shall have the meaning assigned thereto in Section 13.10(d).
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Pension Plan that is subject to Title IV of ERISA other
than those events as to which the 30-day notice period is waived under
subsection .22, .23, .27 or .28 of PBGC Regulation Section 4043.
"Required Lenders" means, at any date, any combination of Lenders whose
Aggregate Revolving Credit Commitment Percentage equals at least fifty-one
percent (51%) of the Aggregate Revolving Credit Commitment or, if the Aggregate
Revolving Credit Commitment has been terminated, any combination of Lenders who
collectively hold at least fifty-one percent (51%) of the aggregate unpaid
principal amount of the Extensions of Credit (excluding the aggregate unpaid
principal amount of Competitive Bid Loans); provided that, for purposes of
declaring the Loans to be due and payable pursuant to Article XI, and for all
purposes after the Loans become due and payable pursuant to Article XI, the
outstanding Competitive Bid Loans of the Lenders shall be included in the
Lenders' respective Aggregate Revolving Credit Commitment Percentages in
determining the Required Lenders.
"Responsible Officer" means any of the following: the chairman,
president, chief executive officer, chief financial officer, treasurer or vice
president and corporate controller of a Borrower or any other officer of a
Borrower reasonably acceptable to the Administrative Agent.
"Revolving Credit Loans" means any revolving loan made to a Borrower
pursuant to Section 2.2 under the 364 Day Facility or the Five Year Facility,
and all such revolving loans collectively as the context requires.
"Revolving Credit Notes" means the collective reference to the
Revolving Credit Notes made by the Borrowers payable to the order of each Lender
with a Five Year Facility Commitment or a 364 Day Facility Commitment,
substantially in the form of Exhibit A hereto, and any amendments and
modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extensions thereof, in whole or in part; "Revolving
Credit Note" means any of such Revolving Credit Notes.
"SEC Reports" shall have the meaning assigned thereto in Section
6.1(x).
"Spot Rate" for a currency means the rate quoted by the Administrative
Agent as the spot rate for the purchase by the Administrative Agent of such
currency with another currency through its foreign exchange trading office at
approximately 8:00 a.m. (Charlotte time) on the date two Business Days prior to
the date as of which the foreign exchange computation is made.
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"Sterling" means the currency of the United Kingdom.
"Subordinated Debt" means the collective reference to Debt on Schedule
6.1(p) hereof designated as Subordinated Debt and any other Debt of the Credit
Parties or any Subsidiary thereof subordinated in right and time of payment to
the Obligations and otherwise permitted hereunder.
"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 fifty percent (50%) of the equity or more than fifty percent (50%) of the
ordinary voting power or, in the case of a partnership, more than fifty percent
(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. Unless otherwise qualified, references to
"Subsidiary" or "Subsidiaries" herein shall refer to those of the Company.
"Support Obligation" means, with respect to any Person and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided that the term Support Obligation
shall not include (i) endorsements for collection or deposit in the ordinary
course of business or (ii) a contractual commitment by one Person to invest in
another Person for so long as such investment is expected to constitute a
permitted investment under Section 9.3.
"Swingline Commitment" means the obligation of the Swingline Lender to
make Swingline Loans under the Five Year Facility for the accounts of the
Borrowers in an aggregate principal amount at any time outstanding not to exceed
Twenty Million Dollars ($20,000,000).
"Swingline Lender" means NBD Bank in its capacity as issuer of any
Swingline Loan.
"Swingline Loans" means any revolving loan made pursuant to Section 2.6
and all such loans collectively as the context requires.
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"Swingline Termination Date" means the earlier to occur of (a) the
resignation of NBD Bank as Swingline Lender and (b) the Five Year Facility
Termination Date.
"TARGET" means the Trans-European Automated Real-time Gross settlement
Express Transfer system.
"TARGET Business Day" means a day when TARGET is scheduled to be open
for business.
"Taxes" shall have the meaning assigned thereto in Section 4.11(a).
"Termination Date" means the 364 Day Facility Termination Date or the
Five Year Facility Termination Date, as the context requires.
"Termination Event" means any of the following that result in a
Material Adverse Effect: (a) a "Reportable Event" described in Section 4043 of
ERISA, or (b) the withdrawal of a Borrower or any ERISA Affiliate from a Pension
Plan during a plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, or (c) the termination of a Pension Plan, the
filing of a notice of intent to terminate a Pension Plan or the treatment of a
Pension Plan amendment as a termination under Section 4041 of ERISA, or (d) the
institution of proceedings to terminate, or to seek the appointment of a trustee
with respect to, any Pension Plan by the PBGC, or (e) any other event or
condition which would constitute grounds under Section 4042(a) of ERISA for the
termination of, or the appointment of a trustee to administer any Pension Plan,
or (f) the partial or complete withdrawal of a Borrower or any ERISA Affiliate
from a Multiemployer Plan, or (g) the imposition of a Lien pursuant to Section
412 of the Code or Section 302 of ERISA, or (h) any event or condition which
results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA, (i) any event or condition which results in the
termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA or (j) the withdrawal or partial withdrawal of any Credit
Party or ERISA Affiliate from a Multiemployer Plan.
"Transition Period" means the period established by EMU Legislation,
beginning on January 1, 1999 and ending on the Transition Period Cutoff Date,
during which sums of money in the Participating Member States may be denominated
in either euro or National Currency Units.
"Transition Period Cutoff Date" shall mean December 31, 2001, or such
other date as may be established by EMU Legislation.
"Treaty on European Union" means the Treaty of Rome of March 25, 1957,
as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was
signed at Maastricht on February 1, 1992 and came into force on November 1,
1993), as amended from time to time.
"UCC" means, with respect to any Letter of Credit, the Uniform
Commercial Code as in effect in the State in which the corporate headquarters of
the relevant Issuing Lender is located or
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such other jurisdiction as is acceptable to the relevant Issuing Lender, as
amended, restated or otherwise modified from time to time.
"Unfunded Current Liability" of any Pension Plan means the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Pension Plan as of the close of its most recent year, determined in
accordance with actuarial assumptions at such time consistent with Statement of
Financial Accounting Standards No 87, exceeds the sum of (a) the market value of
the assets allocable thereto and (b) $100,000.
"Uniform Customs" means the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500.
"United States" means the United States of America.
"Utilization Fee" means a per annum rate equal to the Applicable
Percentage for Utilization Fee.
"Wholly-Owned" means, with respect to a Subsidiary, that all of the
shares of capital stock or other ownership interests of such Subsidiary are,
directly or indirectly, owned or controlled by any Credit Party and/or one or
more of its Wholly-Owned Subsidiaries.
"Year 2000 Problem" shall have the meaning assigned thereto in Section
5.2(h)(ii).
SECTION 1.2 GENERAL.
Unless otherwise specified, a reference in this Agreement to a
particular section, subsection, Schedule or Exhibit is a reference to that
section, subsection, Schedule or Exhibit of this Agreement. Wherever from the
context it appears appropriate, each term stated in either the singular or
plural shall include the singular and plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the masculine, feminine and
neuter. Any reference herein to "Charlotte time," "Chicago time" or "London
time" shall refer to the applicable time of day in Charlotte, North Carolina,
Chicago, Illinois or London, England, as applicable.
SECTION 1.3 OTHER DEFINITIONS AND PROVISIONS.
(a) Use of Capitalized Terms. Unless otherwise defined therein,
all capitalized terms defined in this Agreement shall have the defined meanings
provided herein when used in this Agreement, the Notes and the other Loan
Documents or any certificate, report or other document made or delivered
pursuant to this Agreement.
(b) Miscellaneous. The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
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SECTION 1.4 CURRENCY EQUIVALENTS GENERALLY.
For all purposes of this Agreement (but not for purposes of the
preparation of any financial statements delivered pursuant hereto), the
equivalent in any Offshore Currency or other currency of an amount in Dollars,
and the equivalent in Dollars of an amount in any Offshore Currency or other
currency, shall be determined at the Spot Rate.
SECTION 1.5 INTRODUCTION OF EURO; NATIONAL CURRENCY UNIT
ADVANCES; ETC.
(a) National Currency Unit Advances. Prior to the Transition
Period Cutoff Date, and upon request by a Borrower in accordance with Section
2.2(a), Revolving Credit Loans that are Offshore Currency Loans may be funded
and maintained in National Currency Units of the Available EMU Currency
designated by such Borrower in its Notice of Revolving Credit Borrowing.
Repayments of Offshore Currency Loans that were funded in National Currency
Units pursuant to this Section shall be made in such National Currency Units;
provided, however, that any Offshore Currency Loan that is (i) denominated in
National Currency Units and (ii) outstanding as of the Transition Period Cutoff
Date shall be automatically redenominated into euro as of the close of business
on such date at the applicable Irrevocable Conversion Rate; and provided further
that repayments of all such Offshore Currency Loans made after the Transition
Period Cutoff Date shall be denominated in euro. After the Transition Period
Cutoff Date, Offshore Currency Loans shall no longer be funded in National
Currency Units.
(b) Conversions to Euro. For the avoidance of doubt, the parties
hereto affirm and agree that neither the fixation of the conversion rate of an
Available EMU Currency against the euro as a single currency, in accordance with
the Treaty on European Union, nor the conversion of any Obligations under the
Loan Documents from an Available EMU Currency, or National Currency Units, into
euro, shall require the early termination of this Agreement or the prepayment of
any amount due under the Loan Documents or create any liability of one party to
another party for any direct or consequential loss arising from any of such
events.
(c) Currency Translations; Rounding. Any translation from one
currency or currency unit to another shall be at the rate specified herein or,
if not so specified, then at the official rate of exchange legally recognized by
the central bank of the country issuing such currency for the conversion of that
currency or currency unit into the other. Any such translation shall be rounded
up or down by the Administrative Agent acting in accordance with any Applicable
Law on rounding or, if there is no such law, acting reasonably in accordance
with its market practice.
(d) Changes in Currency. If a change in any currency of a country
occurs, this Agreement will be amended to the extent the Administrative Agent
(acting reasonably) specifies to be necessary to reflect the change in currency
and to put the parties hereto in the same position, as far as possible, that
they would have been in if no change in currency had occurred; provided that any
such amendments will not adversely affect the Lenders.
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ARTICLE II
CREDIT FACILITIES
SECTION 2.1 AMOUNT AND TERMS OF CREDIT.
(a) Description of Facilities. Upon the terms and subject to the
conditions set forth in this Agreement: (i) the Lenders hereby grant to the
Borrowers a short term revolving credit facility (the "364 Day Facility") and a
multi-year revolving credit facility (the "Five Year Facility") pursuant to
which each Lender severally agrees to make Revolving Credit Loans to the
respective Borrowers in Dollars and Offshore Currencies in accordance with
Section 2.2 and the Swingline Lender agrees to make Swingline Loans to the
respective Borrowers in Dollars in accordance with Section 2.6 and (ii) the
parties hereto agree that each Lender may, in its sole discretion, make bids to
make Competitive Bid Loans to the respective Borrowers in Dollars, Canadian
Dollars or Australian Dollars in accordance with Section 2.5; provided that (A)
the aggregate principal Dollar Equivalent amount of all outstanding Revolving
Credit Loans (after giving effect to any amount requested) made under the 364
Day Facility shall not exceed the 364 Day Facility Commitment less the aggregate
principal Dollar Equivalent amount of all outstanding Competitive Bid Loans made
under the 364 Day Facility; and the principal Dollar Equivalent amount of
outstanding Revolving Credit Loans made under the 364 Day Facility by any Lender
shall not at any time exceed such Lender's 364 Day Facility Commitment; and (B)
the aggregate principal Dollar Equivalent amount of all outstanding Revolving
Credit Loans (after giving effect to any amount requested) made under the Five
Year Facility plus the aggregate principal amount of all outstanding Swingline
Loans made under the Five Year Facility (after giving effect to the amount of
any Swingline Loans requested under the Five Year Facility and exclusive of
Swingline Loans made under the Five Year Facility which are repaid with the
proceeds of, and simultaneously with the incurrence of, Revolving Credit Loans
under the Five Year Facility) shall not exceed the Five Year Facility Commitment
less the sum of (x) all outstanding L/C Obligations plus (y) the aggregate
principal Dollar Equivalent amount of all outstanding Competitive Bid Loans made
under the Five Year Facility; and the principal Dollar Equivalent amount of
outstanding Revolving Credit Loans made under the Five Year Facility by any
Lender shall not at any time exceed such Lender's Five Year Facility Commitment.
Each Revolving Credit Loan made by a Lender under the 364 Day Facility or the
Five Year Facility shall be in a principal Dollar Equivalent amount equal to
such Lender's Commitment Percentage of the aggregate principal Dollar Equivalent
amount of Revolving Credit Loans requested under such facility on such occasion.
(b) Application of Facilities. The Credit Facility established
hereby shall be used by the Borrowers and their respective Subsidiaries to:
(i) refinance existing Debt of the Company and its
Subsidiaries, including without limitation, Debt outstanding under the
Prior Bank Commitments;
(ii) finance share repurchases and friendly acquisitions by
the Company; and
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(iii) finance the working capital, capital expenditures and
general corporate purposes of the Borrowers and their respective
Subsidiaries;
and, accordingly, the Borrowers shall apply all amounts raised by them hereunder
in or towards satisfaction of such purposes and neither the Administrative Agent
and the Lenders nor any of them shall be obliged to concern themselves with such
application.
SECTION 2.2 PROCEDURE FOR ADVANCES OF REVOLVING CREDIT LOANS.
(a) Requests for Revolving Credit Loans. A Borrower shall give the
Administrative Agent irrevocable prior written notice in the form attached
hereto as Exhibit B-1 (a "Notice of Revolving Credit Borrowing") not later than
11:00 a.m. (Charlotte time) (i) on the same Business Day as each Base Rate Loan,
(ii) at least three (3) Business Days before each Offshore Rate Loan denominated
in Dollars, and (iii) at least four (4) Business Days before each Offshore
Currency Loan, of its intention to borrow, specifying (A) the date of such
borrowing, which shall be a Business Day, (B) whether such Revolving Credit Loan
is to be made under the 364 Day Facility or the Five Year Facility, (C) the
amount of such borrowing, which shall be in an amount equal to the unused amount
of the 364 Day Facility Commitment or the Five Year Facility Commitment, as
applicable, or if less, (x) with respect to Base Rate Loans, in an aggregate
principal amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof, (y) with respect to Offshore Rate Loans denominated in Dollars, in an
aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof and (z) with respect to Offshore Rate Loans denominated in an
Offshore Currency, in an aggregate principal amount of a whole multiple of
1,000,000 units of such Offshore Currency in excess of an amount of such
Offshore Currency having a Dollar Equivalent of $5,000,000; (D) whether such
Revolving Credit Loan is to be an Offshore Rate Loan or Base Rate Loan and (E)
in the case of an Offshore Rate Loan, the duration of the Interest Period
applicable thereto and the Applicable Currency. Notices received after 11:00
a.m. (Charlotte time) shall be deemed received on the next Business Day. The
Administrative Agent shall promptly notify the Lenders of each Notice of
Revolving Credit Borrowing. The Dollar Equivalent amount of an Offshore Currency
Loan will be determined by the Administrative Agent for such Offshore Currency
Loan on the Determination Date therefor in accordance with Section 2.9(a).
(b) Disbursement of Revolving Credit Loans. Each Lender will make
available to the Administrative Agent, for the accounts of the respective
Borrowers, at the Administrative Agent's Office in funds immediately available
to the Administrative Agent, such Lender's Commitment Percentage of the
Revolving Credit Loans to be made on such borrowing date (i) in the case of a
Revolving Credit Loan denominated in Dollars, no later than 2:00 p.m. (Charlotte
time) on the proposed borrowing date and (ii) in the case of a Revolving Credit
Loan that is an Offshore Currency Loan, by such time as the Administrative Agent
may determine to be necessary for such funds to be credited on such date in
accordance with normal banking practices in the place of payment. Each Borrower
hereby irrevocably authorizes the Administrative Agent to disburse the proceeds
of each borrowing requested by such Borrower pursuant to this Section 2.2 in
immediately available funds by crediting or wiring such proceeds to the deposit
account of such Borrower identified in the most recent notice of account
designation, substantially in the form of Exhibit C hereto (a "Notice of Account
Designation"), delivered by such Borrower to the
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Administrative Agent or as may be otherwise agreed upon by such Borrower and the
Administrative Agent from time to time. Subject to Section 4.7 hereof, the
Administrative Agent shall not be obligated to disburse the portion of the
proceeds of any Revolving Credit Loan requested pursuant to this Section 2.2 for
which any Lender is responsible to the extent that such Lender has not made
available to the Administrative Agent its Commitment Percentage of such
Revolving Credit Loan.
SECTION 2.3 REPAYMENT OF LOANS.
(a) Repayment on Termination Date. Each Borrower agrees to repay
the outstanding principal amount of all Loans made to it under the 364 Day
Facility in full on the 364 Day Facility Termination Date, with all accrued but
unpaid interest thereon. Each Borrower agrees to repay the outstanding principal
amount of all Loans made to it under, and its Reimbursement Obligation under,
the Five Year Facility in full on the Five Year Facility Termination Date, with
all accrued but unpaid interest thereon.
(b) Mandatory Repayment of Loans.
(i) If at any time (A) the sum of the outstanding principal
Dollar Equivalent amount of all Loans made under the 364 Day Facility
exceeds the 364 Day Facility Commitment of all Lenders or (B) the sum
of the outstanding principal Dollar Equivalent amount of all Loans made
under the Five Year Facility and all outstanding L/C Obligations
exceeds the Five Year Facility Commitment of all Lenders, in each case
other than solely as a result of a change in applicable rates of
exchange between Dollars and Offshore Currencies, the Borrowers agree
to repay immediately upon notice from the Administrative Agent, by
payment to the Administrative Agent for the account of the Lenders,
Revolving Credit Loans, Swingline Loans, L/C Obligations or Competitive
Bid Loans and/or furnish cash collateral reasonably satisfactory to the
Administrative Agent, in an amount equal to such excess. Such cash
collateral shall be applied in accordance with Section 11.2(b).
(ii) If on any Determination Date, the Administrative Agent
shall have determined that the aggregate principal Dollar Equivalent
amount of all Loans and L/C Obligations then outstanding exceeds the
Aggregate Revolving Credit Commitment by more than $500,000 due to a
change in applicable rates of exchange between Dollars and Offshore
Currencies, then the Administrative Agent shall give notice to the
Borrowers that a prepayment is required under this Section 2.3(b)(ii)
and the Borrowers agree thereupon to make prepayments of Loans within
two (2) Business Days after receipt of such notice such that, after
giving effect to such prepayments, the aggregate Dollar Equivalent
amount of all Loans and L/C Obligations then outstanding does not
exceed the Aggregate Revolving Credit Commitment.
(iii) Notwithstanding anything to the contrary in Section
2.3(b)(ii), the mandatory repayment described in such Section of any
Offshore Rate Loans may be delayed until the last day of the Interest
Period applicable to such Offshore Rate Loans; provided, that if the
Borrowers so delay repayment of Offshore Rate Loans, the
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Borrowers shall deposit or cause to be deposited, on the day repayment
would have otherwise been required, in a cash collateral account opened
by the Administrative Agent, an amount equal to the aggregate principal
amount of such delayed mandatory repayment of Offshore Rate Loans and
any accrued but unpaid interest thereon. Any repayment of such Offshore
Rate Loans other than on the last day of the Interest Period applicable
thereto shall be accompanied by any amount required to be paid pursuant
to Section 4.9 hereof.
(c) Optional Repayments. Each Borrower may at any time and from
time to time repay the Revolving Credit Loans or Swingline Loans made to it, in
whole or in part, upon at least three (3) Business Days irrevocable notice to
the Administrative Agent with respect to Offshore Rate Loans and one (1)
Business Day irrevocable notice with respect to Base Rate Loans, in the form
attached hereto as Exhibit D (a "Notice of Prepayment") specifying the date and
amount of repayment; whether the repayment is of Revolving Credit Loans or
Swingline Loans and whether such loans were made under the 364 Day Facility or
the Five Year Facility, or a combination thereof, and, if a combination, the
amount allocable to each; and whether the repayment is of Offshore Rate Loans,
Base Rate Loans, or a combination thereof, and, if of a combination, the amount
allocable to each. Upon receipt of such notice, the Administrative Agent shall
promptly notify each Lender. If any such notice is given, the amount specified
in such notice shall be due and payable on the date set forth in such notice.
Partial repayments shall be in an aggregate amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof with respect to Base Rate Loans, $250,000
or a whole multiple of $100,000 in excess thereof with respect to Swingline
Loans and $5,000,000 or a whole multiple of $1,000,000 in excess thereof with
respect to Offshore Rate Loans.
(d) Limitation on Repayment of Offshore Rate Loans. The Borrowers
may not repay any Offshore Rate Loan on any day other than on the last day of
the Interest Period applicable thereto unless such repayment is accompanied by
any amount required to be paid pursuant to Section 4.9 hereof.
(e) Limitation on Repayment of Competitive Bid Loans. The
Borrowers may not repay any Competitive Bid Loan on any day other than on the
last day of the Interest Period applicable thereto except, and on such terms, as
agreed to by the Borrower to which the Competitive Bid Loan was made and the
Lender which made such Competitive Bid Loan.
SECTION 2.4 REVOLVING CREDIT NOTES.
Each Lender's Revolving Credit Loans and the obligation of each
Borrower to repay such Revolving Credit Loans shall be evidenced by separate
Revolving Credit Notes executed by each Borrower payable to the order of such
Lender. Each Revolving Credit Note shall be dated the date hereof and shall bear
interest on the unpaid principal amount thereof at the applicable interest rate
per annum specified in Section 4.1.
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SECTION 2.5 COMPETITIVE BID LOANS AND PROCEDURE.
(a) Subject to the terms and conditions set forth herein, from
time to time until the expiration or termination of the Aggregate Revolving
Credit Commitment, each Borrower may request Competitive Bids under the 364 Day
Facility or the Five Year Facility, and may (but shall not have any obligation
to) accept Competitive Bids and borrow Competitive Bid Loans, which shall be
denominated in Dollars, Canadian Dollars or Australian Dollars; provided that
(i) the sum of the aggregate principal Dollar Equivalent amount of outstanding
Revolving Credit Loans made under the 364 Day Facility plus the aggregate
principal Dollar Equivalent amount of outstanding Competitive Bid Loans made
thereunder at any time shall not exceed the 364 Day Facility Commitment and (ii)
the sum of the aggregate principal Dollar Equivalent amount of outstanding
Revolving Credit Loans and Swingline Loans made under the Five Year Facility
plus the aggregate principal Dollar Equivalent amount of outstanding Competitive
Bid Loans made thereunder at any time shall not exceed the Five Year Facility
Commitment less the sum of all outstanding L/C Obligations. To request
Competitive Bids, a Borrower shall notify the Administrative Agent of such
request by telephone, not later than 11:00 a.m. (Charlotte time) one (1)
Business Day before the date of the proposed borrowing; provided that a
Competitive Bid Request shall not be made within five (5) Business Days after
the date of any previous Competitive Bid Request. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Competitive Bid Request in a form
approved by the Administrative Agent and signed by the Company. Each such
telephonic and written Competitive Bid Request shall specify the following
information:
(i) the aggregate amount of the requested borrowing, which shall
be a minimum of $5,000,000 (or the Dollar Equivalent thereof) and an
integral multiple of 1,000,000 units of the applicable currency in
excess thereof;
(ii) the date of such borrowing, which shall be a Business Day;
(iii) the Interest Period to be applicable to such borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period";
(iv) whether the borrowing is to be made under the 364 Day
Facility or the Five Year Facility); and
(v) the location and number of the Borrower's account to which
funds are to be disbursed.
Promptly following receipt of a Competitive Bid Request in accordance
with this Section, the Administrative Agent shall notify the Lenders of the
details thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make
one or more Competitive Bids to a Borrower in response to a Competitive Bid
Request. Such Competitive Bids by a Lender may be for an amount greater than (or
less than) such Lender's respective Commitments. Each Competitive Bid by a
Lender must be in a form approved by the
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Administrative Agent and must be received by the Administrative Agent by
telecopy, not later than 9:30 a.m. (Charlotte time) on the proposed date of such
borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 (or the Dollar Equivalent
thereof) and an integral multiple of 1,000,000 units of the applicable currency
in excess thereof and which may equal the entire principal amount of the
borrowing requested by the Borrower) of the Competitive Bid Loan or Loans that
the applicable Lender is willing to make, (ii) the Competitive Bid Rate or Rates
at which such Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the last
day thereof.
(c) The Administrative Agent shall promptly notify the Borrower
requesting Competitive Bids by telecopy of the Competitive Bid Rate and the
principal amount specified in each Competitive Bid and the identity of the
Lender that shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower
requesting Competitive Bids may accept or reject any Competitive Bid. Such
Borrower shall notify the Administrative Agent by telephone, confirmed by
telecopy in a form approved by the Administrative Agent, whether and to what
extent it has decided to accept or reject each Competitive Bid, not later than
10:30 a.m. (Charlotte time) on the date of the proposed borrowing; provided that
(i) the failure of such Borrower to give such notice shall be deemed to be a
rejection of each Competitive Bid, (ii) such Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if such Borrower
rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by such Borrower shall not
exceed the aggregate amount of the requested borrowing specified in the related
Competitive Bid Request, (iv) to the extent necessary to comply with clause
(iii) above, such Borrower may accept Competitive Bids at the same Competitive
Bid Rate in part, which acceptance, in the case of multiple Competitive Bids at
such Competitive Bid Rate, shall be made pro rata in accordance with the amount
of each such Competitive Bid, and (v) except pursuant to clause (iv) above, no
Competitive Bid shall be accepted for a Competitive Bid Loan unless such
Competitive Bid Loan is in a minimum principal amount of $5,000,000 (or the
Dollar Equivalent thereof) and an integral multiple of l,000,000 units of the
applicable currency in excess thereof; provided further that if a Competitive
Bid Loan must be in an amount less than $5,000,000 (or the Dollar Equivalent
thereof) because of the provisions of clause (iv) above, such Competitive Bid
Loan may be for a minimum of 1,000,000 units of the applicable currency or any
integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple Competitive Bids at a particular Competitive
Bid Rate pursuant to clause (iv) above the amounts shall be rounded to integral
multiples of 1,000,000 units of the applicable currency in a manner determined
by the Borrower. A notice given by a Borrower pursuant to this paragraph shall
be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the
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terms and conditions hereof, to make the Competitive Bid Loan in respect of
which its Competitive Bid has been accepted.
(f) Not later than 2:00 p.m. (Charlotte time) on the proposed
borrowing date, each Lender whose Competitive Bid has been accepted will make
available to the Administrative Agent, for the account of the Borrower to whom
the Competitive Bid Loan is to be made, at the office of the Administrative
Agent in funds immediately available to the Administrative Agent, the amount of
the Competitive Bid Loan to be made on such borrowing date by such Lender. Each
Borrower hereby irrevocably authorizes the Administrative Agent to disburse the
proceeds of each borrowing requested pursuant to this Section 2.5 in immediately
available funds by crediting or wiring such proceeds to the deposit account of
such Borrower identified in its most recent Notice of Account Designation or as
may be otherwise agreed upon by such Borrower and the Administrative Agent from
time to time. Subject to Section 4.7 hereof, the Administrative Agent shall not
be obligated to disburse the proceeds of any Competitive Bid Loan requested
pursuant to this Section 2.5 for which any Lender is responsible to the extent
that such Lender has not made available to the Administrative Agent the amount
of such Competitive Bid Loan.
(g) If the entity which is the Administrative Agent shall elect to
submit a Competitive Bid in its capacity as a Lender, it shall submit such
Competitive Bid directly to the Borrower requesting Competitive Bids at least
one quarter of an hour earlier than the time by which the other Lenders are
required to submit their Competitive Bids to the Administrative Agent pursuant
to paragraph (b) of this Section.
(h) While any Competitive Bid Loan made under the 364 Day Facility
is outstanding, the 364 Day Facility Commitment of each Lender shall be deemed
used for all purposes by an amount equal to its pro rata share (based on its
respective 364 Day Facility Commitment Percentage) of the principal Dollar
Equivalent amount of such Competitive Bid Loan.
(i) While any Competitive Bid Loan made under the Five Year
Facility is outstanding, the Five Year Facility Commitment of each Lender shall
be deemed used for all purposes by an amount equal to its pro rata share (based
on its respective Five Year Facility Commitment Percentage) of the principal
Dollar Equivalent amount of such Competitive Bid Loan.
(j) (i) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each
Borrower to such Lender resulting from each Competitive Bid Loan made
by such Lender to such Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from
time to time hereunder.
(ii) The entries maintained in the accounts maintained pursuant
to paragraph (i) shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that
the failure of the Administrative Agent or any Lender to maintain such
accounts or any error therein shall not in any manner affect the
obligation of each Borrower to repay the Obligations in accordance with
their terms.
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(iii) The Competitive Bid Loans made by each Lender shall be
evidenced by such Lender's respective Revolving Credit Notes.
(k) Each Borrower shall repay the outstanding principal amount of
each Competitive Bid Loan made to it in full on the last day of the Interest
Period applicable thereto, with all accrued but unpaid interest thereon.
Competitive Bid Loans may not be repaid prior to the last day of the applicable
Interest Period except in accordance with Section 2.3(b) and (e).
SECTION 2.6 SWINGLINE LOANS AND PROCEDURE.
(a) Swingline Commitment. Subject to the terms and conditions set
forth herein, from time to time until the Swingline Termination Date, the
Swingline Lender agrees to make, under the Five Year Facility, a revolving loan
or revolving loans (each a "Swingline Loan" and, collectively, the "Swingline
Loans") to the respective Borrowers, which Swingline Loans (i) shall be
denominated in Dollars, (ii) may be repaid and reborrowed in accordance with the
provisions hereof, (iii) shall not exceed in aggregate principal amount at any
time outstanding, when combined with the sum of the aggregate principal Dollar
Equivalent amount of outstanding Revolving Credit Loans made under the Five Year
Facility plus the aggregate principal amount of Competitive Bid Loans made
thereunder at any time, the Five Year Facility Commitment less the sum of all
outstanding L/C Obligations, (iv) shall not exceed in aggregate principal amount
at any time outstanding the Swingline Commitment and (v) shall bear interest at
a rate mutually agreeable to the Swingline Lender and the applicable Borrower.
Notwithstanding anything to the contrary contained in this Section 2.6(a), (x)
the Swingline Lender shall not be obligated to make any Swingline Loans at a
time when a Lender Default exists unless the Swingline Lender has entered into
arrangements satisfactory to it and the Borrowers to eliminate the Swingline
Lender's risk with respect to the Defaulting Lender's or Lenders' participation
in such Swingline Loans, including by cash collateralizing such Defaulting
Lender's or Lenders' Commitment Percentage of the outstanding Swingline Loans
and (y) the Swingline Lender shall not make any Swingline Loan after it has
received written notice from any Borrower or the Required Lenders stating that a
Default or an Event of Default exists and is continuing until such time as the
Swingline Lender shall have received written notice (A) of rescission of all
such notices from the party or parties originally delivering such notice or (B)
of the waiver of such Default or Event of Default by the Required Lenders.
(b) Mandatory Borrowings.
(i) On any Business Day, the Swingline Lender may, in its sole
discretion, advise the Administrative Agent to give notice to the
Lenders that the Swingline Lender's outstanding Swingline Loans under
the Five Year Facility shall be funded with one or more borrowings of
Revolving Credit Loans denominated in Dollars (provided that such
notice shall be deemed to have been automatically given with respect to
outstanding Swingline Loans upon the occurrence of a Default or an
Event of Default under Section 11.1(i), (j), (k) or (l)), in which case
one or more borrowings of Revolving Credit Loans under the Five Year
Facility constituting Base Rate Loans (each such Borrowing, a
"Mandatory Borrowing") shall be made on the immediately succeeding
Business Day by all Lenders in accordance with each Lender's Commitment
Percentage and the proceeds
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thereof shall be applied directly by the Administrative Agent to repay
the Swingline Lender for such outstanding Swingline Loans. Each Lender
hereby irrevocably agrees to make Revolving Credit Loans upon one
Business Day's notice pursuant to each Mandatory Borrowing in the
amount and in the manner specified in the preceding sentence and on the
date specified in writing by the Administrative Agent notwithstanding
(A) the amount of the Mandatory Borrowing may not comply with the
minimum borrowing amount otherwise required hereunder, (B) whether any
conditions specified in Section 5.4 are then satisfied, (C) whether a
Default or an Event of Default then exists, (D) the date of such
Mandatory Borrowing and (E) the amount of the Five Year Facility
Commitment or the Aggregate Revolving Credit Commitment at such time.
In the event that any Mandatory Borrowing cannot for any reason be made
on the date otherwise required above (including, without limitation, as
a result of the occurrence of a Bankruptcy Event with respect to any
Credit Party), then each Lender hereby agrees that it shall forthwith
purchase (as of the date the Mandatory Borrowing would otherwise have
occurred, but adjusted for any payments received from the respective
Borrower on or after such date and prior to such purchase) from the
Swingline Lender such participations in the outstanding Swingline Loans
made under the Five Year Facility as shall be necessary to cause the
Lenders to share in such Swingline Loans ratably based upon their
respective Commitment Percentages, provided that (x) all interest
payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective
participation is required to be purchased and, to the extent
attributable to the purchased participation, shall be payable to the
participant from and after such date and (y) at the time any purchase
of participations pursuant to this sentence is actually made, the
purchasing Lender shall be required to pay the Swingline Lender
interest on the principal amount of participations purchased for each
day from and including the day upon which the Mandatory Borrowing would
otherwise have occurred to but excluding the date of payment for such
participation, at the overnight Federal Funds Rate for the first three
days and at the rate otherwise applicable to Base Rate Loans hereunder
for each day thereafter.
(ii) To the extent amounts received from the Lenders pursuant to
Section 2.6(b)(i) above are not sufficient to repay in full the
outstanding Swingline Loans requested or required to be repaid, the
Borrowers agree to pay to the Swingline Lender on demand the amount
required to repay such Swingline Loans in full. In addition, each
Borrower hereby authorizes the Administrative Agent to charge any
account maintained by such Borrower with the Swingline Lender (up to
the amount available therein) in order to immediately pay the Swingline
Lender the amount of such Swingline Loans to the extent amounts
received from the Lenders are not sufficient to repay in full the
outstanding Swingline Loans requested or required to be repaid. If any
portion of any such amount paid to the Swingline Lender shall be
recovered by or on behalf of a Borrower from the Swingline Lender in
bankruptcy or otherwise, the loss of the amount so recovered shall be
ratably shared among all the Lenders in accordance with their
respective Commitment Percentages.
(c) Amount of Each Swingline Borrowing. Each Swingline Loan
shall be made in an aggregate principal amount of $500,000 or a whole multiple
of $l00,000 in excess thereof.
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(d) Notice of Borrowing.
(i) A Borrower shall give the Swingline Lender irrevocable prior
written notice (a "Notice of Swingline Borrowing") substantially in the
form attached as Exhibit B-2 no later than 1:00 p.m. (Chicago time) (i)
on the same Business Day as each Base Rate Loan, (ii) at least three
(3) Business Days before each Offshore Rate Loan denominated in Dollars
or (iii) on such other Business Day as may be mutually agreeable to the
Swingline Lender and such Borrower, of its intention to borrow,
specifying (A) the date of such borrowing, which shall be a Business
Day, (B) the amount of such borrowing, which shall be in an amount
equal to the unused amount of the Swingline Commitment or less, (C)
whether such Swingline Loan is to be an Offshore Rate Loan denominated
in Dollars, a Base Rate Loan or a Swingline Loan bearing interest at an
alternative rate mutually agreeable to the Swingline Lender and the
applicable Borrower and (D) in the case of an Offshore Rate Loan, the
duration of the Interest Period applicable thereto. Notices received
after 1:00 p.m. (Chicago time) shall be deemed received on the next
Business Day.
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 2.6(b), with each Borrower irrevocably agreeing,
by its incurrence of any Swingline Loan, to the making of the Mandatory
Borrowings as set forth in Section 2.6(b).
(e) Disbursement of Funds. Not later than 2:00 p.m. (Chicago time)
on the proposed borrowing date, the Swingline Lender will make available to the
Administrative Agent, for the account of the Borrower to whom the Swingline Loan
is to be made, at the office of the Administrative Agent in funds immediately
available to the Administrative Agent, the amount of the Swingline Loan to be
made on such borrowing date. In the case of Mandatory Borrowings, no later than
2:00 p.m. (Charlotte time) on the date specified in Section 2.6(b), each Lender
will make available to the Administrative Agent, for the account of the
respective Borrower, at the office of the Administrative Agent in funds
immediately available to the Administrative Agent, such Lender's Commitment
Percentage of Mandatory Borrowings to be made on such borrowing date. Each
Borrower hereby irrevocably authorizes the Administrative Agent to disburse the
proceeds of each borrowing requested pursuant to this Section 2.6 in immediately
available funds by crediting or wiring such proceeds to the deposit account of
such Borrower identified in the most recent Notice of Account Designation or as
may be otherwise agreed upon by such Borrower and the Administrative Agent from
time to time or, in the case of Mandatory Borrowings, in the manner specified in
Section 2.6(b)(i). Subject to Section 4.7 hereof, the Administrative Agent shall
not be obligated to disburse the proceeds of any Swingline Loan requested
pursuant to this Section 2.6 to the extent that the Swingline Lender has not
made available to the Administrative Agent the amount of such Swingline Loan.
(f) Notes. The Swingline Lender's Swingline Loans shall be
evidenced by such Lender's respective Revolving Credit Notes.
(g) Usage Under Five Year Facility Commitments. While any
Swingline Loan made under the Five Year Facility is outstanding, the Five Year
Facility Commitment of each Lender
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shall be deemed used for all purposes by an amount equal to its pro rata share
(based on its respective Five Year Facility Commitment Percentage) of the
principal amount of such Swingline Loan.
(h) Notice to the Administrative Agent. The Swingline Lender shall
promptly give notice to the Administrative Agent of all Swingline Loans made
hereunder, and all repayments of such Swingline Loans.
SECTION 2.7 COMMITMENT REDUCTIONS AND INCREASES.
(a) Voluntary Reduction. The Borrowers shall have the right at any
time and from time to time, upon at least four (4) Business Days' prior written
notice to the Administrative Agent, to permanently reduce (except as provided
below), without premium or penalty, (i) (A) the entire 364 Day Facility
Commitment at any time or (B) portions of the 364 Day Facility Commitment from
time to time in an aggregate principal Dollar Equivalent amount not less than
$5,000,000 or any whole multiple of $500,000 in excess thereof or (ii) (A) the
entire Five Year Facility Commitment at any time or (B) portions of the Five
Year Facility Commitment from time to time, in an aggregate principal Dollar
Equivalent amount not less than $5,000,000 or any whole multiple of $500,000 in
excess thereof.
(b) Payments Related to a Voluntary Reduction.
(i) Each permanent reduction of the 364 Day Facility Commitment
made pursuant to this Section 2.7 shall be accompanied, if necessary,
by a payment of principal sufficient to reduce the aggregate
outstanding Revolving Credit Loans made under the 364 Day Facility to
the amount of the new 364 Day Facility Commitment after such reduction
to the 364 Day Facility Commitment. Any reduction of the 364 Day
Facility Commitment to zero (including upon termination of the 364 Day
Facility on the 364 Day Facility Termination Date) shall be accompanied
by payment of all outstanding Revolving Credit Loans made under the 364
Day Facility and shall result in the termination of the 364 Day
Facility Commitment and the 364 Day Facility. If the reduction of the
364 Day Facility Commitment requires the repayment of any Offshore Rate
Loan, such repayment shall be accompanied by any amount required to be
paid pursuant to Section 4.9 hereof. Notwithstanding anything herein to
the contrary, the 364 Day Facility Commitment may not be permanently
reduced by such an amount so that after such reduction, the 364 Day
Facility Commitment is less than the aggregate amount of all unpaid
principal of and interest on outstanding Competitive Bid Loans made
under the 364 Day Facility.
(ii) Each permanent reduction of the Five Year Facility
Commitment made pursuant to this Section 2.7 shall be accompanied, if
necessary, by a payment of principal sufficient to reduce the aggregate
outstanding Revolving Credit Loans and Swingline Loans made under the
Five Year Facility and L/C Obligations, as applicable, to the amount of
the new Five Year Facility Commitment after such reduction to the Five
Year Facility Commitment and, if the Five Year Facility Commitment as
so reduced is less than the aggregate amount of all outstanding Letters
of Credit, the Borrower shall be
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required to deposit in a cash collateral account opened by the
Administrative Agent an amount equal to the amount by which the
aggregate then undrawn and unexpired amount of such Letters of Credit
exceeds the Five Year Facility Commitment as so reduced. Such cash
collateral shall be applied in accordance with Section 11.2(b). Any
reduction of the Five Year Facility Commitment to zero (including upon
termination of the Five Year Facility on the Five Year Facility
Termination Date) shall be accompanied by payment of all outstanding
Revolving Credit Loans and Swingline Loans made under the Five Year
Facility (and furnishing of cash collateral satisfactory to the
Administrative Agent for all L/C Obligations) and shall result in the
termination of the Five Year Facility Commitment and the Five Year
Facility. If the reduction of the Five Year Facility Commitment
requires the repayment of any Offshore Rate Loan, such repayment shall
be accompanied by any amount required to be paid pursuant to Section
4.9 hereof. Notwithstanding anything herein to the contrary, the Five
Year Facility Commitment may not be permanently reduced by such an
amount so that after such reduction, the Five Year Facility Commitment
is less than the aggregate amount of all unpaid principal of and
interest on outstanding Competitive Bid Loans made under the Five Year
Facility.
(c) Commitment Increases. Subject to the terms and conditions set forth
herein, upon 30 days' advance written notice to the Administrative Agent, the
Company shall have the right, at any time and from time to time from the Closing
Date until the termination of the Aggregate Revolving Credit Commitment (but no
more than once a year, with each year for purposes hereof being deemed to begin
at Closing or an anniversary thereof), to increase the Aggregate Revolving
Credit Commitment to up to $400,000,000; provided that (i) the 364 Day Facility
Commitment and the Five Year Facility Commitment shall be increased on a pro
rata basis, (ii) any such increase shall be in a minimum principal amount of
$15,000,000 and an integral multiple of $5,000,000 in excess thereof, (iii) if
any Revolving Credit Loans are outstanding under a Credit Facility at the time
of any such increase, the Company shall make such payments and adjustments on
such Revolving Credit Loans (including payment of any break-funding amount owing
under Section 4.9) as are necessary to give effect to the revised commitment
percentages and commitment amounts of the Lenders and (iv) the conditions to an
Extension of Credit in Sections 5.2 shall be satisfied after giving effect to
any such increase. An increase in the Credit Facility hereunder shall be subject
to satisfaction of the following: (A) the amount of such increase shall be
offered first to the existing Lenders, (B) each existing Lender shall have the
right, but not the obligation, to commit to all or a portion of the proposed
increase to the respective Credit Facilities on a pro rata basis (based on its
then existing Commitments), (C) in the event the additional commitments which
such existing Lenders are willing to take shall exceed the amount requested by
the Company, then additional commitments shall be allocated in proportion to the
commitments of such existing Lenders willing to take additional commitments and
(D) if the amount of the additional commitments requested by the Company shall
exceed the additional commitments which the existing Lenders under such facility
are willing to take, then the Company may invite other commercial banks and
financial institutions reasonably acceptable to the Administrative Agent to join
this Agreement as Lenders hereunder for the portion of commitments not taken by
such existing Lenders, provided that (i) the minimum commitment of each such
institution equals or exceeds the smallest Commitment of an existing Lender
prior to the increase to the Credit Facility and (ii) such institutions shall
enter into such joinder agreements to give effect thereto as the Administrative
Agent and/or the Company may
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reasonably request. In connection with any increase in, or new, Commitments
pursuant to this Section, Schedule 1.1(a) hereto shall be revised to reflect the
modified commitment percentages and commitments of the Lenders.
SECTION 2.8 TERMINATION; EXTENSION OPTIONS.
(a) Termination of 364 Day Facility. The 364 Day Facility shall
terminate on the earliest of (a) the 364 Day Facility Specified Maturity Date,
(b) the date of termination of the 364 Day Facility Commitment by the Company
pursuant to Section 2.7(a), and (c) the date of termination by the
Administrative Agent on behalf of the Lenders pursuant to Section 11.2(a).
(b) Termination of Five Year Facility. The Five Year Facility
shall terminate on the earliest of (a) the Five Year Facility Specified Maturity
Date, (b) the date of termination of the Five Year Facility Commitment by the
Company pursuant to Section 2.7(a), and (c) the date of termination by the
Administrative Agent on behalf of the Lenders pursuant to Section 11.2(a).
(c) 364 Day Facility Extension Option. Not earlier than the date
60 days prior to, nor later than the date 30 days prior to, the 364 Day Facility
Specified Maturity Date then in effect, the Company may deliver to the
Administrative Agent (which shall promptly transmit to each Lender) a notice
requesting that the 364 Day Facility Specified Maturity Date be extended for an
additional 364 day period. Within 15 days after its receipt of any such notice,
each Lender shall notify the Administrative Agent of its willingness or
unwillingness to so extend its 364 Day Facility Commitment. Any Lender that
shall fail to so notify the Administrative Agent within such period shall be
deemed to have declined to extend its 364 Day Facility Commitment. If Lenders
holding a majority in amount of the aggregate 364 Day Facility Commitment (as of
the date such 15-day notice period expires) agree to extend their 364 Day
Facility Commitments, the Administrative Agent shall so notify the Company and
each Lender that shall have consented to such request, whereupon (i) the
respective 364 Day Facility Commitments of such consenting Lenders shall without
further act be extended for an additional 364 day period, (ii) the term "364 Day
Facility Specified Maturity Date" shall thenceforth mean, as to the Loans of
such consenting Lenders under the 364 Day Facility, the last day of such
additional 364 day period and (iii) the 364 Day Facility Commitments of the
non-extending Lenders shall terminate on the 364 Day Facility Specified Maturity
Date in effect prior to such extension and the Loans and other amounts owed to
such Lenders shall become due and payable on such date. If Lenders holding a
majority (i.e., greater than 50%) in amount of the aggregate 364 Day Facility
Commitment (as of the date such 15-day notice period expires) shall not have
agreed to extend their 364 Day Facility Commitments, then none of the 364 Day
Facility Commitments shall be extended and the 364 Day Facility Specified
Maturity Date shall remain unchanged.
(d) Five Year Facility Extension Option. Not earlier than the date
60 days prior to, nor later than the date 30 days prior to, the Five Year
Facility Specified Maturity Date then in effect, the Company may deliver to the
Administrative Agent (which shall promptly transmit to each Lender) a notice
requesting that the Five Year Facility Specified Maturity Date be extended for
an additional 364 day period. Within 15 days after its receipt of any such
notice, each Lender shall notify the Administrative Agent of its willingness or
unwillingness to so extend its Five Year Facility Commitment. Any Lender that
shall fail to so notify the Administrative Agent
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within such period shall be deemed to have declined to extend its Five Year
Facility Commitment. If Lenders holding a majority in amount of the aggregate
Five Year Facility Commitment (as of the date such 15-day notice period expires)
agree to extend their Five Year Facility Commitments, the Administrative Agent
shall so notify the Company and each Lender that shall have consented to such
request, whereupon (i) the respective Five Year Facility Commitments of such
consenting Lenders shall without further act be extended for an additional 364
day period, (ii) the term "Five Year Facility Specified Maturity Date" shall
thenceforth mean, as to the Loans of such consenting Lenders under the Five Year
Facility, the last day of such additional 364 day period and (iii) the Five Year
Facility Commitments of the non-extending Lenders shall terminate on the Five
Year Facility Specified Maturity Date in effect prior to such extension and the
Loans and other amounts owed to such Lenders shall become due and payable on
such date. If Lenders holding a majority (i.e., greater than 50%) in amount of
the aggregate Five Year Facility Commitment (as of the date such 15-day notice
period expires) shall not have agreed to extend their Five Year Facility
Commitments, then none of the Five Year Facility Commitments shall be extended
and the Five Year Facility Specified Maturity Date shall remain unchanged.
SECTION 2.9 UTILIZATION OF REVOLVING COMMITMENTS IN OFFSHORE
CURRENCIES.
(a) The Administrative Agent will determine the Dollar Equivalent
amount with respect to any (i) Revolving Credit Loan or Competitive Bid Loan
that is an Offshore Currency Loan as of the requested borrowing date and as of
any requested continuation date and (ii) outstanding Offshore Currency Loans as
of the last Business Day of each month, and, during the occurrence and
continuation of an Event of Default, such other dates as may be requested by the
Required Lenders (but in no event more frequently than once a week) (each such
date under clause (i) and (ii), a "Determination Date").
(b) The Lenders shall be under no obligation to make Revolving
Credit Loans in a requested Offshore Currency if the Administrative Agent has
received notice from the Required Lenders by 12:30 p.m. (Charlotte time) three
Business Days prior to the date of a requested borrowing of an Offshore Currency
Loan that deposits in the relevant Offshore Currency (in the applicable amounts)
are not being offered to such Lenders in the interbank eurocurrency market for
such Interest Period in which event the Administrative Agent will give notice to
the Borrower requesting such Offshore Currency Loan no later than 1:30 p.m.
(Charlotte time) on the third Business Day prior to the requested date of such
borrowing that the borrowing in the requested Offshore Currency is not then
available, and notice thereof will also be given promptly by the Administrative
Agent to the Lenders. If the Administrative Agent shall have notified the
Borrower that any requested Offshore Currency Loan is not then available, the
Notice of Revolving Credit Borrowing relating to such requested Offshore
Currency Loan shall be deemed to be withdrawn, the borrowing requested therein
shall not occur and the Administrative Agent will promptly so notify each
Lender.
(c) In the case of a proposed continuation of an Offshore Currency
Loan for an additional Interest Period pursuant to Section 4.2, the Lenders
shall be under no obligation to continue such Offshore Currency Loan if the
Administrative Agent has received notice from the Required Lenders by 12:30 p.m.
(Charlotte time) two Business Days prior to the requested date
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of such continuation that deposits in the relevant Offshore Currency (in the
applicable amounts) are not being offered to such Lenders in the interbank
eurocurrency market for such Interest Period in which event the Administrative
Agent will give notice to the Borrower requesting such continuation no later
than 1:30 p.m. (Charlotte time) on the second Business Day prior to the
requested date of such continuation that the continuation of such Offshore
Currency Loan is not then available, and notice thereof will also be given
promptly by the Administrative Agent to the Lenders. If the Administrative Agent
shall have notified the Borrower requesting continuation of an Offshore Currency
Loan that the requested continuation is not then available, the Notice of
Continuation with respect thereto shall be deemed to be withdrawn and such
Offshore Currency Loan shall be repaid on the last day of the Interest Period
with respect thereto.
(d) Notwithstanding anything herein to the contrary, during the
existence of a payment Default or an Event of Default, and at the request of the
Required Lenders (or, in the case of a Competitive Bid Loan made in an Offshore
Currency, the Lender that has made such Loan), all or any part of outstanding
Offshore Currency Loans shall be redenominated and converted into their Dollar
Equivalent of Base Rate Loans in Dollars on the last day of the Interest Period
applicable to any such Offshore Currency Loans. The Administrative Agent will
promptly notify the Company and the Lenders of any such redenomination and
conversion request.
(e) The Company shall be entitled to request that Revolving Credit
Loans hereunder also be permitted to be made to a Borrower in any other lawful
currency (other than Dollars), in addition to the currencies specified in the
definition of "Offshore Currency" in Section 1.1, that in the opinion of the
Administrative Agent and all of the Lenders is at such time freely traded in the
offshore interbank foreign exchange markets, freely transferable and freely
convertible into Dollars and readily utilized for the settlement of private
international debt transactions (an "Agreed Alternative Currency"). The Company
shall deliver in writing to the Administrative Agent any request for designation
of an Agreed Alternative Currency in accordance with Section 13.1, to be
received by the Administrative Agent not later than 11:00 a.m. (Charlotte time)
at least 10 Business Days in advance of the date of any borrowing hereunder
proposed to be made in such Agreed Alternative Currency. Upon receipt of any
such request the Administrative Agent will promptly notify the Lenders thereof,
and each Lender will use its commercially reasonable efforts to respond to such
request within five (5) Business Days of receipt thereof. Each Lender may grant
or accept such request in its sole discretion. The Administrative Agent will
promptly notify the Company of the acceptance or rejection of any such request.
SECTION 2.10 DESIGNATED BORROWERS.
(a) Addition of Designated Borrower. The Company may request
designation of any of its Foreign Subsidiaries (an "Applicant Borrower") as a
Designated Borrower hereunder by delivery of such a request to the
Administrative Agent together with an executed copy of a Borrower Joinder
Agreement in substantially the form attached hereto as Exhibit E. The
Administrative Agent will promptly notify the Lenders of any such request
together with a copy of the Borrower Joinder Agreement executed by the Applicant
Borrower. The joinder of each Applicant Borrower as a designated Borrower will
be subject to delivery of executed promissory notes, if any, required in
connection therewith, and supporting resolutions, articles of
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incorporation, incumbency certificates, opinions of counsel and such other items
as the Administrative Agent and/or the Required Lenders may reasonably request.
Any such addition of a Designated Borrower shall be effective five Business Days
after receipt by the Administrative Agent of the items required by the
Administrative Agent and/or the Required Lenders in connection therewith. Such
Designated Borrower shall thereupon become a party hereto and a Designated
Borrower hereunder and shall be (i) entitled to all rights and benefits of a
Borrower hereunder and under each instrument executed pursuant hereto and (ii)
subject to all obligations of a Borrower hereunder and thereunder.
(b) Removal of a Designated Borrower. The Company may request that
any of its Foreign Subsidiaries that is a Designated Borrower hereunder cease to
be a Designated Borrower by delivering to the Administrative Agent (which shall
promptly deliver copies thereof to each Lender) a written notice to such effect.
Such Designated Borrower shall cease to be a Borrower hereunder on the later to
occur of (i) the date the Administrative Agent receives such request and (ii)
the date such Borrower has paid all of its Loans and all accrued and unpaid
interest, fees and other obligations hereunder or in connection herewith.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C COMMITMENT.
Subject to the terms and conditions hereof, each Issuing Lender, in
reliance on the agreements of the other Lenders set forth in Section 3.4(a),
agrees to issue standby and/or trade letters of credit ("Letters of Credit") for
the respective accounts of the Borrowers on any Business Day from the Closing
Date through but not including the Five Year Facility Termination Date in such
form as may be approved from time to time by such Issuing Lender; provided, that
no Issuing Lender shall have any obligation to issue any Letter of Credit if,
after giving effect to such issuance, (a) the L/C Obligations would exceed the
L/C Commitment or (b) the sum of (i) the aggregate principal Dollar Equivalent
amount of outstanding Revolving Credit Loans made under the Five Year Facility,
(ii) the aggregate principal amount of outstanding Swingline Loans made under
the Five Year Facility, (iii) the aggregate principal amount of L/C Obligations
and (iv) the aggregate principal amount of Competitive Bid Loans made under the
Five Year Facility, would exceed the Five Year Facility Commitment. Each Letter
of Credit shall (A) be denominated in Dollars, (B) be a letter of credit issued
to support obligations of a Borrower or any of its Subsidiaries, contingent or
otherwise, incurred in the ordinary course of business, (C) expire on a date no
later than one year from the date of issuance thereof and no later than the Five
Year Facility Termination Date and (D) be subject to the Uniform Customs and, to
the extent not inconsistent therewith, the laws of the State in which the
corporate headquarters of the relevant Issuing Lender is located or such other
jurisdiction as is acceptable to the relevant Issuing Lender. No Issuing Lender
shall at any time be obligated to issue any Letter of Credit hereunder if such
issuance would conflict with, or cause such Issuing Lender or any L/C
Participant to exceed any limits imposed by, any Applicable Law. References
herein
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to "issue" and derivations thereof with respect to Letters of Credit shall also
include extensions or modifications of any existing Letters of Credit, unless
the context otherwise requires.
SECTION 3.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT.
Any Borrower may from time to time request that any Issuing Lender
issue a Letter of Credit (or amend, extend or renew an outstanding Letter of
Credit) by delivering to such Issuing Lender at any Issuing Lender's office at
any address mutually acceptable to such Borrower and such Issuing Lender an L/C
Application therefor, completed to the satisfaction of such Issuing Lender, and
such other certificates, documents and other papers and information as such
Issuing Lender may reasonably request. The L/C Application will contain a
representation and warranty that the conditions specified in Section 5.3 hereof
have been satisfied or waived in writing by the Administrative Agent as of the
date of the L/C Application. Upon receipt of any L/C Application, such Issuing
Lender shall process such L/C Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall, subject to Section 3.1, this
Section 3.2 and Article V hereof, promptly issue the Letter of Credit (or amend,
extend or renew the outstanding Letter of Credit) requested thereby (but in no
event shall any Issuing Lender be required to issue any Letter of Credit (or
amend, extend or renew an outstanding Letter of Credit) earlier than three (3)
Business Days after its receipt of the L/C Application therefor and all such
other certificates, documents and other papers and information relating thereto)
by issuing the original of such Letter of Credit to the beneficiary thereof or
as otherwise may be agreed by such Issuing Lender and the Borrower submitting
the L/C Application. Within fifteen (15) Business Days after the end of each
calendar quarter, each Issuing Lender shall report to each Lender all Letters of
Credit issued by it during the previous calendar quarter and the average daily
undrawn and unexpired amounts for all Letters of Credit for each day in such
calendar quarter.
SECTION 3.3 FEES AND OTHER CHARGES.
(a) The Borrowers agree to pay to each Issuing Lender, for the
account of such Issuing Lender and the L/C Participants, a letter of credit fee
(the "L/C Fee") with respect to each Letter of Credit issued by such Issuing
Lender in an amount equal to the Applicable Percentage for L/C Fee times the
average daily undrawn amount of such issued Letters of Credit as reported by
such Issuing Lender pursuant to Section 3.2. Such fee shall be payable quarterly
in arrears on the last Business Day of each calendar quarter, commencing on the
first of such dates to occur after the Closing, and on the Five Year Facility
Termination Date.
(b) Each Issuing Lender shall, promptly following its receipt
thereof, distribute to the L/C Participants the L/C Fees received by such
Issuing Lender in accordance with their respective Five Year Facility Commitment
Percentages.
(c) In addition to the L/C Fees, each Borrower agrees to pay to
the relevant Issuing Lender that has issued a Letter of Credit at the request of
such Borrower, for such Issuing Lender's own account without sharing by the
other Lenders, (i) such fronting and negotiation fees as may be mutually agreed
upon by such Issuing Lender and the Company from time to time and (ii) customary
charges of such Issuing Lender with respect to the issuance, amendment,
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transfer, administration, cancellation and conversion of, and drawings under,
such Letters of Credit.
SECTION 3.4 L/C PARTICIPATIONS.
(a) Each Issuing Lender irrevocably agrees to grant and hereby
grants to each L/C Participant, and, to induce such Issuing Lender to issue
Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from such Issuing Lender, on the
terms and conditions hereinafter stated, for such L/C Participant's own account
and risk, an undivided interest equal to such L/C Participant's Five Year
Facility Commitment Percentage in such Issuing Lender's obligations and rights
under each Letter of Credit issued hereunder and the amount of each draft paid
by such Issuing Lender thereunder. Each L/C Participant unconditionally and
irrevocably agrees with each Issuing Lender that, if a draft is paid under any
Letter of Credit for which such Issuing Lender is not reimbursed in full by the
Borrowers in accordance with the terms of this Agreement, such L/C Participant
shall pay to such Issuing Lender upon demand at such Issuing Lender's address
for notices specified herein an amount equal to such L/C Participant's Five Year
Facility Commitment Percentage of the amount of such draft, or any part thereof,
which is not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any
L/C Participant to any Issuing Lender pursuant to Section 3.4(a) in respect of
any unreimbursed portion of any payment made by such Issuing Lender under any
Letter of Credit, the Administrative Agent shall notify each L/C Participant of
the amount and due date of such required payment and such L/C Participant shall
pay to such Issuing Lender the amount specified on the applicable due date. If
any such amount is paid to such Issuing Lender after the date such payment is
due, such L/C Participant shall pay to such Issuing Lender on demand, in
addition to such amount, the product of (i) such amount, times (ii) the daily
average Federal Funds Rate as determined by the Administrative Agent during the
period from and including the date such payment is due to the date on which such
payment is immediately available to such Issuing Lender, times (iii) a fraction
the numerator of which is the number of days that elapse during such period and
the denominator of which is 360. A certificate of any Issuing Lender with
respect to any amounts owing under this Section 3.4(b) shall be conclusive in
the absence of manifest error. With respect to payment to any Issuing Lender of
the unreimbursed amounts described in this Section 3.4(b), if the L/C
Participants receive notice that any such payment is due (A) prior to 1:00 p.m.
(Charlotte time) on any Business Day, such payment shall be due that Business
Day, and (B) after 1:00 p.m. (Charlotte time) on any Business Day, such payment
shall be due on the following Business Day.
(c) Whenever, at any time after any Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
Five Year Facility Commitment Percentage of such payment in accordance with this
Section 3.4, such Issuing Lender receives any payment related to such Letter of
Credit (whether directly from a Borrower or otherwise, or any payment of
interest on account thereof), such Issuing Lender will distribute to such L/C
Participant its pro rata share thereof in accordance with such L/C Participant's
Five Year Facility Commitment Percentage; provided, that in the event that any
such payment received by such Issuing Lender shall be required to be returned by
such Issuing Lender, such L/C Participant
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shall return to such Issuing Lender the portion thereof previously distributed
by such Issuing Lender to it.
SECTION 3.5 REIMBURSEMENT OBLIGATION OF THE BORROWERS.
Each Borrower agrees to reimburse each Issuing Lender on each date such
Issuing Lender notifies such Borrower of the date and amount of a draft paid
under any Letter of Credit requested by such Borrower for the amount of (i) such
draft so paid and (ii) any taxes, fees, charges or other costs or expenses
incurred by any Issuing Lender in connection with such payment. Each such
payment shall be made to any Issuing Lender at its address for notices specified
herein in lawful money of the United States and in immediately available funds.
Interest shall be payable on any and all amounts remaining unpaid by any
Borrower under this Article III from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in full
at the rate which would be payable on any outstanding Base Rate Loans which were
then overdue. If any Borrower fails to timely reimburse such Issuing Lender on
the date such Borrower receives the notice referred to in this Section 3.5, such
Borrower shall be deemed to have timely given a Notice of Revolving Credit
Borrowing pursuant to Section 2.2 hereunder to the Administrative Agent
requesting the Lenders to make a Base Rate Loan under the Five Year Facility on
such date in an amount equal to the amount of such draft paid, together with any
taxes, fees, charges or other costs or expenses incurred by any Issuing Lender
and to be reimbursed pursuant to this Section 3.5 and, regardless of whether or
not the conditions precedent specified in Article VI have been satisfied, the
Lenders shall make Base Rate Loans in such amount, the proceeds of which shall
be applied to reimburse such Issuing Lender for the amount of the related
drawing and costs and expenses. Notwithstanding the foregoing, nothing in this
Section 3.5 shall obligate the Lenders to make such Base Rate Loans if the
making of such Base Rate Loans would violate the automatic stay under federal
bankruptcy laws.
SECTION 3.6 OBLIGATIONS ABSOLUTE.
Each Borrower's obligations under this Article III (including without
limitation the Reimbursement Obligation) shall be absolute and unconditional
under any and all circumstances and irrespective of any set-off, counterclaim or
defense to payment which such Borrower may have or have had against any Issuing
Lender or any beneficiary of a Letter of Credit. Each Borrower also agrees with
each Issuing Lender that no Issuing Lender shall be responsible for, and such
Borrower's Reimbursement Obligation under Section 3.5 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among such Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of such Borrower against
any beneficiary of such Letter of Credit or any such transferee. No Issuing
Lender shall be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by such Issuing Lender's gross negligence or willful
misconduct. Each Borrower agrees that any action taken or omitted by any Issuing
Lender under or in connection with any Letter of Credit or the related drafts or
documents, if done in the absence of
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gross negligence or willful misconduct and in accordance with the standards of
care specified in the Uniform Customs and, to the extent not inconsistent
therewith, the UCC shall be binding on such Borrower and shall not result in any
liability of any Issuing Lender to such Borrower. The responsibility of each
Issuing Lender to any Borrower in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
SECTION 3.7 EFFECT OF L/C APPLICATION.
To the extent that any provision of any L/C Application related to any
Letter of Credit is inconsistent with the provisions of this Article III, the
provisions of this Article III shall apply.
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1 INTEREST.
(a) Interest Rate Options. Subject to the provisions of this
Section 4.1, at the election of a Borrower, the aggregate principal balance of
any Revolving Credit Loans and Swingline Loans (if the Swingline Lender consents
to such election) shall bear interest at (i) the Base Rate or (ii) the Offshore
Rate plus the Applicable Percentage for Offshore Rate Loans under the 364 Day
Facility or the Five Year Facility, as applicable; provided that such interest
rate shall be increased by any amount required pursuant to Section 4.1(f). Such
Borrower shall select the rate of interest, Interest Period, if any, and
Applicable Currency, in the case of an Offshore Currency Loan, applicable to any
Revolving Credit Loan or Swingline Loan at the time a Notice of Revolving Credit
Borrowing is given pursuant to Section 2.2, or at the time a Notice of Swingline
Borrowing is given pursuant to Section 2.6(d) or at the time a Notice of
Conversion/Continuation is given pursuant to Section 4.2. Each Revolving Credit
Loan, Swingline Loan, or portion thereof bearing interest based on the Base Rate
shall be a "Base Rate Loan," and each Revolving Credit Loan, Swingline Loan, or
portion thereof bearing interest based on the Offshore Rate shall be an
"Offshore Rate Loan." Any Revolving Credit Loan or Swingline Loan or any portion
thereof as to which the Borrower requesting such Revolving Credit Loan or
Swingline Loan has not duly specified an interest rate as provided herein shall
be deemed a Base Rate Loan. A Competitive Bid Loan will bear interest at the
Competitive Bid Rate specified in the Competitive Bid accepted by the Borrower
with respect to such Competitive Bid Loan.
(b) Interest Periods. In connection with each Offshore Rate Loan
and each Competitive Bid Loan, a Borrower, by giving notice at the times
described in Section 4.1(a), shall elect an interest period (each, an "Interest
Period") to be applicable to such Revolving Credit Loan or such Competitive Bid
Loan, which Interest Period shall, unless otherwise agreed by the Administrative
Agent and the Lenders, be a period of one (1), two (2), three (3), or, if
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available to all Lenders for the requested Available Currency, six (6) months
with respect to each Offshore Rate Loan and a period of seven (7) days to 183
days with respect to each Competitive Bid Loan; provided that:
(i) the Interest Period shall commence on the date of advance of
or conversion to any Offshore Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall
commence on the date on which the next preceding Interest Period
expires;
(ii) if any Interest Period would otherwise expire on a day that
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, that if any Interest Period with
respect to an Offshore Rate Loan would otherwise expire on a day that
is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(iii) any Interest Period with respect to an Offshore Rate Loan
that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the relevant calendar month at the end of such Interest
Period;
(iv) no Interest Period shall extend beyond the Termination Date
of the facility under which the Offshore Rate Loan or Competitive Bid
Loan with respect to which such Interest Period relates was made; and
(v) there shall be no more than six (6) Offshore Rate Loans
outstanding hereunder at any time (it being understood that, for
purposes hereof, Offshore Rate Loans with different Interest Periods
shall be considered as separate Offshore Rate Loans, even if they begin
on the same date, although borrowings, extensions and conversions may,
in accordance with the provisions hereof, be combined by a Borrower at
the end of existing Interest Periods to constitute a new Offshore Rate
Loan with a single Interest Period).
(c) Default Rate, etc. Subject to Section 11.3, at the discretion
of the Administrative Agent and the Required Lenders, upon the occurrence and
during the continuance of an Event of Default, (i) the Borrowers shall no longer
have the option to request Offshore Rate Loans, (ii) all outstanding Offshore
Rate Loans shall bear interest at a rate per annum equal to two percent (2%) in
excess of the rate then applicable to such Offshore Rate Loans until the end of
the applicable Interest Period and thereafter at a rate equal to two percent
(2%) in excess of the rate then applicable to Base Rate Loans, (iii) all
outstanding Base Rate Loans shall bear interest at a rate per annum equal to two
percent (2%) in excess of the rate then applicable to Base Rate Loans and (iv)
each outstanding Competitive Bid Loan shall bear interest at a rate per annum
equal to two percent (2%) in excess of the rate then applicable to such
Competitive Bid Loan. Interest shall continue to accrue on the amount of Loans
outstanding after the filing by or against a Borrower of any petition seeking
any relief in bankruptcy or under any act or law pertaining to insolvency or
debtor relief, whether state, federal or foreign.
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(d) Interest Payment and Computation. Interest on each Base Rate
Loan shall be payable in arrears on the last Business Day of each calendar
quarter commencing on the first of such dates to occur after the Closing Date,
and interest on each Offshore Rate Loan and each Competitive Bid Loan shall be
payable on the last day of each Interest Period applicable thereto, and if such
Interest Period exceeds three (3) months, at the end of each three (3) month
interval during such Interest Period. Interest on all Loans and all fees payable
hereunder shall be computed on the basis of a 360-day year (or, with respect to
Offshore Currency Loans, such alternative basis as the Administrative Agent
reasonably determines to be consistent with market practice) and assessed for
the actual number of days elapsed.
(e) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option (i) promptly refund to the Borrowers any interest received by
Lenders in excess of the maximum lawful rate or (ii) shall apply such excess to
the principal balance of the Obligations. It is the intent hereof that the
Borrowers not pay or contract to pay, and that neither the Administrative Agent
nor any Lender receive or contract to receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may be paid by the Borrowers
under Applicable Law.
(f) Additional Interest on Loans.
(i) Utilization Fee. In the case of all Loans, on each day that
the aggregate principal amount of all outstanding Loans exceeds 50% of
the Aggregate Revolving Credit Commitment, the otherwise applicable
interest rate determined pursuant to Section 4.1(a) shall be increased
by the Utilization Fee.
(ii) Mandatory Costs. In the case of a Revolving Credit Loan
that is an Offshore Currency Loan, the otherwise applicable interest
rate determined pursuant to Section 4.1(a) shall be increased by (A)
the MLA Cost associated with such Loan, computed in the manner set
forth in Schedule 4.1(f) attached hereto and/or (B) any other
applicable regulatory or central banking requirement relating to any
Loan made through a branch in the jurisdiction of the currency of that
Loan.
SECTION 4.2 CONVERSION AND CONTINUATION OF REVOLVING CREDIT
LOANS.
Provided that no Event of Default has occurred and is then continuing,
and subject to the terms of this Agreement, any Borrower shall have the option
(a) to convert all or any portion of its outstanding Base Rate Loans in a
principal amount equal to $5,000,000 or any whole multiple of $1,000,000 in
excess thereof into one or more Offshore Rate Loans denominated in Dollars or an
Offshore Currency and (b)(i) to convert all or any part of its outstanding
Offshore Rate Loans in a principal amount equal to $1,000,000 or a whole
multiple of $500,000 in excess thereof into
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Base Rate Loans denominated in Dollars or (ii) to continue Offshore Rate Loans,
whether denominated in Dollars or Offshore Currency Loans, as Offshore Rate
Loans in the same currency for an additional Interest Period; provided that if
any conversion or continuation is made prior to the expiration of any Interest
Period, such Borrower shall pay any amount required to be paid pursuant to
Section 4.9 hereof. Whenever a Borrower desires to convert or continue Revolving
Credit Loans or Swingline Loans as provided above, such Borrower shall give the
Administrative Agent irrevocable prior written notice in the form attached as
Exhibit F (a "Notice of Conversion/Continuation") not later than 11:00 a.m.
(Charlotte time) three (3) Business Days before the day on which a proposed
conversion or continuation of such Revolving Credit Loan or Swingline Loan is to
be effective (except in the case of a conversion of an Offshore Rate Loan
denominated in Dollars to a Base Rate Loan, in which case same day notice not
later than 11:00 a.m. (Charlotte time) by the Borrower shall be sufficient)
specifying (A) the Revolving Credit Loans or Swingline Loans to be converted or
continued, the facility under which such Loans were made and, in the case of any
Offshore Rate Loan to be converted or continued, the last day of the Interest
Period therefor, (B) the effective date of such conversion or continuation
(which shall be a Business Day), (C) the principal Dollar Equivalent amount of
such Revolving Credit Loans to be converted or continued, (D) the Interest
Period to be applicable to such converted or continued Offshore Rate Loan and
(E) in the case of any continued Offshore Rate Loan which is an Offshore
Currency Loan, the Applicable Currency. The Administrative Agent shall promptly
notify the Lenders of such Notice of Conversion/Continuation.
SECTION 4.3 FACILITY FEES.
(a) 364 Day Facility. The Borrowers agree to pay to the
Administrative Agent, for the account of the Lenders, a non-refundable facility
fee (the "364 Day Facility Fee") at a rate per annum equal to the Applicable
Percentage for Facility Fee for the 364 Day Facility on the average daily amount
of the aggregate 364 Day Facility Commitment during the applicable period,
regardless of usage. The 364 Day Facility Fee shall apply to the period
commencing on the Closing Date and ending on the termination of the 364 Day
Facility Commitment and shall be payable in arrears on the last Business Day of
each calendar quarter for the immediately preceding calendar quarter (or portion
thereof), beginning with the first such date to occur after the Closing Date.
Such 364 Day Facility Fee shall be distributed by the Administrative Agent to
the Lenders pro rata in accordance with the Lenders' respective 364 Day Facility
Commitment Percentages.
(b) Five Year Facility. The Borrowers agree to pay to the
Administrative Agent, for the account of the Lenders, a non-refundable facility
fee (the "Five Year Facility Fee") at a rate per annum equal to the Applicable
Percentage for Facility Fee for the Five Year Facility on the average daily
amount of the aggregate Five Year Facility Commitment during the applicable
period, regardless of usage. The Five Year Facility Fee shall apply to the
period commencing on the Closing Date and ending on the termination of the Five
Year Facility Commitment and shall be payable in arrears on the last Business
Day of each calendar quarter for the immediately preceding calendar quarter (or
portion thereof), beginning with the first such date to occur after the Closing
Date. Such Five Year Facility Fee shall be distributed by the Administrative
Agent to the Lenders pro rata in accordance with the Lenders' respective Five
Year Facility Commitment Percentages.
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SECTION 4.4 MANNER OF PAYMENT.
Each payment by a Credit Party on account of the principal of or
interest on the Loans or of any fee, commission or other amounts (including the
Reimbursement Obligation) payable to the Lenders under this Agreement or any
Note shall be made on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent's Office for the account of the
Lenders (other than as set forth below), in Dollars (other than as set forth
below), in immediately available funds and shall be made without any set-off,
counterclaim or deduction whatsoever. Payment of principal of, interest on or
any other amount relating to any Offshore Currency Loan shall be made in the
Offshore Currency in which such Loan is denominated or payable. Such payments,
if denominated in Dollars, shall be made no later than 2:00 p.m. (Charlotte
time) on the relevant date and, if denominated in an Offshore Currency, by such
time as the Administrative Agent may determine to be necessary for such funds to
be credited on such date in accordance with normal banking practices in the
place of payment. Any payment denominated in Dollars received after 1:00 p.m.
(Charlotte time) but before 2:00 p.m. (Charlotte time) on a due date shall be
deemed a payment on such date for the purposes of Section 11.1, but for all
other purposes shall be deemed to have been made on the next succeeding Business
Day. Any payment denominated in Dollars received after 2:00 p.m. (Charlotte
time), or any payment denominated in an Offshore Currency received after the
relevant time determined by the Administrative Agent, shall be deemed to have
been made on the next succeeding Business Day for all purposes. Each payment to
the Administrative Agent of the L/C Fees shall be made in like manner, but for
the account of the Issuing Lenders and the L/C Participants. Each payment to the
Administrative Agent of Administrative Agent's fees or expenses shall be made
for the account of the Administrative Agent and any amount payable to any Lender
under Section 2.5, 2.6, 4.8, 4.9, 4.10, 4.11 or 13.2 shall be paid to the
Administrative Agent for the account of the applicable Lender. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Lender to such Lender promptly following receipt thereof
and shall wire advice of the amount of such credit to such Lender. Subject to
Section 4.l(b)(ii), if any payment under this Agreement or any Note shall be
specified to be made upon a day which is not a Business Day, it shall be made on
the next succeeding day which is a Business Day and such extension of time shall
in such case be included in computing any interest if payable along with such
payment.
SECTION 4.5 CREDITING OF PAYMENTS AND PROCEEDS.
In the event that any Credit Party shall fail to pay any of the
Obligations when due and the Obligations have been accelerated pursuant to
Section 11.2, all payments received by the Lenders upon the Notes and the other
Obligations and all net proceeds from the enforcement of the Obligations shall
be applied first to all expenses then due and payable by the Credit Parties
hereunder, then to all indemnity obligations then due and payable by the Credit
Parties hereunder, then to all Administrative Agent's fees then due and payable,
then to all commitment and other fees and commissions then due and payable, then
to accrued and unpaid interest on the Notes, the Reimbursement Obligations and
any termination payments due in respect of a Hedging Agreement with any Lender
or Affiliate of a Lender (which Hedging Agreement is permitted hereunder) (pro
rata in accordance with all such amounts due), then to the principal
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amount of the Notes and Reimbursement Obligations (pro rata in accordance with
all such amounts due) and then to the cash collateral account described in
Section 11.2(b) hereof to the extent of any L/C Obligations then outstanding, in
that order.
SECTION 4.6 ADJUSTMENTS.
If any Lender (a "Benefited Lender") shall at any time receive any
payment of all or part of the Obligations owing to it, or interest thereon, or
if any Lender shall at any time receive any collateral in respect to the
Obligations owing to it (whether voluntarily or involuntarily, by set- off or
otherwise) in a greater proportion than any such payment to and collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, or interest thereon, such Benefited Lender shall purchase for
cash from the other Lenders such portion of each such other Lender's Extensions
of Credit, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, that if all or any portion
of such excess payment or benefits is thereafter recovered from such Benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned to the extent of such recovery, but without interest. Each Borrower
agrees that each Lender so purchasing a portion of another Lender's Extensions
of Credit may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
SECTION 4.7 NATURE OF OBLIGATIONS OF LENDERS REGARDING EXTENSIONS
OF CREDIT; ASSUMPTION BY THE ADMINISTRATIVE AGENT.
The obligations of the Lenders under this Agreement to make the Loans
and issue or participate in Letters of Credit are several and are not joint or
joint and several. Unless the Administrative Agent shall have received notice
from a Lender prior to a proposed borrowing date that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of the
Revolving Credit Loans to be borrowed, the amount of Competitive Bid Loans to be
made by such Lender or, if such Lender is the Swingline Lender, subject to
Section 2.6(a), the amount of Swingline Loans to be made, on such date (which
notice shall not release such Lender of its obligations hereunder), the
Administrative Agent may assume that such Lender has made such portion or amount
available to the Administrative Agent on the proposed borrowing date in
accordance with Sections 2.2(b), 2.5(f) and 2.6(e), and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower requesting
such borrowing on such date a corresponding amount. If such amount is made
available to the Administrative Agent on a date after such borrowing date, such
Lender shall pay to the Administrative Agent on demand an amount, until paid,
equal to the product of (a) the amount not made available by such Lender in
accordance with the terms hereof, times (b) the daily average Federal Funds Rate
during such period as determined by the Administrative Agent, times (c) a
fraction the numerator of which is the number of days that elapse from and
including such borrowing date to the date on which such amount not made
available by such Lender in accordance with the terms hereof shall have become
immediately available to the Administrative Agent and the denominator of which
is 360. A certificate of the Administrative Agent with respect to any amounts
owing under this Section 4.7 shall be conclusive, absent manifest error. If such
Lender's Commitment Percentage of such
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Revolving Credit Loans, the amount of Competitive Bid Loans made by such Lender,
or, if such Lender is the Swingline Lender, the amount of such Swingline Loans,
is not made available to the Administrative Agent by such Lender within three
(3) Business Days of such borrowing date, the Administrative Agent shall be
entitled to recover such amount made available by the Administrative Agent with
interest thereon at the rate per annum applicable to such borrowing, on demand,
from the Borrower which received such borrowing. The failure of any Lender to
make available its Commitment Percentage of any Revolving Credit Loan, the
amount of a Competitive Bid Loan or the amount of a Swingline Loan requested by
any Borrower shall not relieve it or any other Lender of its obligation
hereunder to make its Commitment Percentage of such Revolving Credit Loan, the
amount of the Competitive Bid Loan or the amount of the Swingline Loan,
respectively, available on the borrowing date, but no Lender shall be
responsible for the failure of any other Lender to make its Commitment
Percentage of such Revolving Credit Loan, the amount of such Competitive Bid
Loan or the amount of such Swingline Loan, available on the borrowing date.
SECTION 4.8 CHANGED CIRCUMSTANCES.
(a) Circumstances Affecting Offshore Rate Availability. If with
respect to any Interest Period: (i) the Administrative Agent or any Lender
(after consultation with the Administrative Agent) shall determine that for any
reason adequate and reasonable means do not exist for determining the Offshore
Rate for any requested Interest Period with respect to a proposed Offshore Rate
Loan or (ii) the Required Lenders reasonably determine (which determination
shall be conclusive) and notify the Administrative Agent that the LIBOR Rate
will not adequately and fairly reflect the cost to the Required Lenders of
funding Offshore Rate Loans for such Interest Period, then the Administrative
Agent shall forthwith give notice thereof to the Borrowers. Thereafter, until
the Administrative Agent notifies the Borrowers that such circumstances no
longer exist, the obligation of the Lenders to make Offshore Rate Loans and the
right of the Borrowers to convert any Revolving Credit Loan to or continue any
Revolving Credit Loan as an Offshore Rate Loan shall be suspended, and the
Borrowers shall repay in full (or cause to be repaid in full) the then
outstanding principal amount of each such Offshore Rate Loan together with
accrued interest thereon, on the last day of the then current Interest Period
applicable to such Offshore Rate Loan or convert the then outstanding principal
amount of each such Offshore Rate Loan to a Base Rate Loan as of the last day of
such Interest Period (Offshore Currency Loans which are not repaid shall be
redenominated and converted into their Dollar Equivalent of Base Rate Loans in
Dollars).
(b) Laws Affecting Offshore Rate Availability. If, after the date
hereof, the introduction of, or any change in, any Applicable Law or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any of their respective
Lending Offices) with any request or directive (whether or not having the force
of law) issued after the date hereof of any such Governmental Authority, central
bank or comparable agency, shall make it unlawful or impossible for any of the
Lenders (or any of their respective Lending Offices) to honor its obligations
hereunder to make or maintain any Offshore Rate Loan, such Lender shall promptly
give notice thereof to the Administrative Agent and the Administrative Agent
shall promptly give notice to the Borrowers and the other Lenders.
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Thereafter, until the Administrative Agent notifies the Borrowers that such
circumstances no longer exist, (i) the obligations of the affected Lenders to
make Offshore Rate Loans and the right of the Borrowers to convert any Revolving
Credit Loan of the affected Lenders or continue any Revolving Credit Loan of the
affected Lenders as an Offshore Rate Loan shall be suspended and thereafter the
Borrowers may select only Base Rate Loans hereunder, (ii) if any of the Lenders
may not lawfully continue to maintain an Offshore Rate Loan to the end of the
then current Interest Period applicable thereto as an Offshore Rate Loan, the
applicable Offshore Rate Loan of the affected Lenders shall immediately be
converted to a Base Rate Loan for the remainder of such Interest Period
(Offshore Currency Loans shall be redenominated and converted into their Dollar
Equivalent of Base Rate Loans in Dollars) and the Borrowers shall pay any amount
required to be paid pursuant to Section 4.9 in connection therewith and (iii) if
any of the Lenders may not lawfully continue to maintain a Competitive Bid Loan
which bears interest at a rate based on the Offshore Rate to the end of the then
current Interest Period applicable thereto at such rate of interest, such
Competitive Bid Loan of the affected Lender shall immediately be converted to a
Base Rate Loan for the remainder of such Interest Period. The Borrowers shall
repay the outstanding principal amount of any Competitive Bid Loans converted
into Base Rate Loans in accordance with clause (iii) of this Section 4.8(b),
together with all accrued but unpaid interest thereon and any amount required to
be paid pursuant to Section 4.9 hereof, on the last day of the Interest Period
applicable to such Competitive Bid Loans.
(c) Increased Costs. If, after the date hereof, the introduction
of, or any change in, any Applicable Law, or in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any of the Lenders (or any of their respective Lending Offices) with any
request or directive (whether or not having the force of law) issued after the
date hereof of such Authority, central bank or comparable agency:
(i) shall subject any of the Lenders (or any of their respective
Lending Offices) to any tax, duty or other charge with respect to any
Note, Letter of Credit or L/C Application or shall change the basis of
taxation of payments to any of the Lenders (or any of their respective
Lending Offices) of the principal of or interest on any Note, Letter of
Credit or L/C Application or any other amounts due under this Agreement
in respect thereof (except for changes in the rate of tax on the
overall net income of any of the Lenders or any of their respective
Lending Offices imposed by the jurisdiction in which such Lender is
organized or is or should be qualified to do business or such Lending
Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System, other than those used to calculate the
LIBOR Rate), special deposit, insurance or capital or similar
requirement against assets of, deposits with or for the account of, or
credit extended by any of the Lenders (or any of their respective
Lending Offices) or shall impose on any of the Lenders (or any of their
respective Lending Offices) or the foreign exchange and interbank
markets any other condition affecting any Note;
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and the result of any event of the kind described in the foregoing
clause (i) or this clause (ii), is to increase the costs to any of the
Lenders of maintaining any Offshore Rate Loan, Competitive Bid Loan or
issuing or participating in Letters of Credit or to reduce the yield or
amount of any sum received or receivable by any of the Lenders under
this Agreement or under the Notes or any Letter of Credit or L/C
Application, then such Lender may promptly notify the Administrative
Agent, and the Administrative Agent shall promptly notify the
respective Borrower of such fact and demand compensation therefor and,
within fifteen (15) days after such notice by the Administrative Agent,
such Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender or Lenders for such increased
cost or reduction. The Administrative Agent and the applicable Lender
will promptly notify the respective Borrower of any event of which it
has knowledge which will entitle such Lender to compensation pursuant
to this Section 4.8(c); provided that the Administrative Agent shall
incur no liability whatsoever to the Lenders or the Borrowers in the
event it fails to do so. The amount of such compensation shall be
determined, in the applicable Lender's reasonable discretion, based
upon the assumption that such Lender funded its Aggregate Revolving
Credit Commitment Percentage of the Offshore Rate Loans, or the amount
of any Competitive Bid Loans made by such Lender, in the London
interbank market and using any reasonable attribution or averaging
methods which such Lender deems appropriate and practical; provided
that no compensation shall be payable pursuant to the above if the
applicable Lender fails to demand compensation for such increased costs
within one-hundred eighty (180) days following the date on which such
Lender has actual knowledge of the event resulting in such increase. A
certificate of such Lender setting forth in reasonable detail the basis
for determining such amount or amounts necessary to compensate such
Lender shall be forwarded to the respective Borrower through the
Administrative Agent and shall be conclusively presumed to be correct
save for manifest error.
(d) Mitigation Obligations; Replacement of Lenders.
(i) Each Lender represents that, as of the Closing Date, it has
no knowledge of the likely occurrence of any event which will entitle
such Lender to compensation pursuant to this Section 4.8. If any Lender
requests compensation under this Section 4.8, or if the Borrowers are
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Sections 4.10 or
4.11, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or
to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender,
such designation or assignment (A) would eliminate or reduce amounts
payable pursuant to this Section 4.8 or Sections 4.10 or 4.11, as the
case may be, in the future and (B) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. The Borrowers agree to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation
or assignment.
(ii) If any Lender requests compensation under this Section 4.8,
or if the Borrowers are required to pay any additional amount to any
Lender or any Governmental
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Authority for the account of any Lender pursuant to Sections 4.10 or
4.11, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrowers may, at their 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 13.10), all its
interests, rights and obligations under this Agreement to an Eligible
Assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (A)
the Borrowers shall have received the prior written consent of the
Administrative Agent (and, if an L/C Commitment is being assigned, the
Issuing Lender), which consent shall not unreasonably be withheld, (B)
such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in Letters of
Credit, 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 Borrowers
(in the case of all other amounts) and (C) in the case of any such
assignment resulting from a claim for compensation under this Section
4.8, 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
Borrowers to require such assignment and delegation cease to apply. If
a Lender defaults, the Borrowers do not waive any of their rights
against such Lender if a Borrower causes the defaulting Lender to
assign its position.
SECTION 4.9 INDEMNITY.
Each Borrower hereby indemnifies each of the Lenders against any loss
or expense which may arise or be attributable to each Lender's obtaining,
liquidating or employing deposits or other funds acquired to effect, fund or
maintain any Loan (a) as a consequence of any failure by such Borrower to make
any payment when due of any amount due hereunder in connection with an Offshore
Rate Loan, (b) due to any failure of such Borrower to borrow on a date specified
therefor in a Notice of Revolving Credit Borrowing, Notice of Swingline
Borrowing, Competitive Bid Request or Notice of Continuation/Conversion or (c)
due to any payment, prepayment or conversion of any Offshore Rate Loan on a date
other than the last day of the Interest Period therefor. The amount of such loss
or expense shall be determined, in the applicable Lender's reasonable
discretion, based upon the assumption that such Lender funded its Commitment
Percentage of the Offshore Rate Loans in the London interbank market and using
any reasonable attribution or averaging methods which such Lender deems
appropriate and practical; provided that no compensation shall be payable
pursuant to the above if the applicable Lender fails to demand compensation for
such increased costs within one-hundred eighty (180) days following the date on
which such Lender has actual knowledge of the event resulting in such increase.
A certificate of such Lender setting forth in reasonable detail the basis for
determining such amount or amounts necessary to compensate such Lender shall be
forwarded to the respective Borrower through the Administrative Agent and shall
be conclusively presumed to be correct save for manifest error.
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SECTION 4.10 CAPITAL REQUIREMENTS.
If either (a) the introduction of, or any change in, or in the
interpretation of, any Applicable Law or (b) compliance with any guideline or
request issued after the date hereof from any central bank or comparable agency
or other Governmental Authority (whether or not having the force of law), has or
would have the effect of reducing the rate of return on the capital of, or has
affected or would affect the amount of capital required to be maintained by, any
Lender or any corporation controlling such Lender as a consequence of, or with
reference to any Lender's 364 Day Facility Commitment or Five Year Facility
Commitment or with reference to the Swingline Lender's Swingline Commitment and
other commitments of this type, below the rate which the Lender or such other
corporation could have achieved but for such introduction, change or compliance,
then within five (5) Business Days after written demand by any such Lender, the
Borrowers shall pay to such Lender from time to time as specified by such Lender
additional amounts sufficient to compensate such Lender or other corporation for
such reduction; provided that no compensation shall be payable pursuant to the
above if the applicable Lender fails to demand compensation for such increased
costs within one-hundred eighty (180) days following the date on which such
Lender has actual knowledge of the event resulting in such increase. A
certificate of such Lender setting forth in reasonable detail the basis for
determining such amounts necessary to compensate such Lender shall be forwarded
to the Borrowers through the Administrative Agent and shall be conclusively
presumed to be correct save for manifest error. Each Lender represents that, as
of the Closing Date, it has no knowledge of the likely occurrence of any event
which will entitle such Lender to compensation pursuant to this Section 4.10.
SECTION 4.11 TAXES.
(a) Payments Free and Clear. Any and all payments by any Borrower
hereunder or under the Notes or the Letters of Credit shall be made free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholding, and all liabilities with respect
thereto excluding, (i) in the case of each Lender and the Administrative Agent,
income and franchise taxes imposed on (or measured by) its net income by the
United States of America or by the jurisdiction under the laws of which such
Lender or the Administrative Agent (as the case may be) is organized or its
principal office is located or is or should be qualified to do business or any
political subdivision thereof, or in the case of any Lender, in which its
applicable Lending Office is located (provided, however, that no Lender shall be
deemed to be located in any jurisdiction solely as a result of taking any action
related to this Agreement, the Notes or Letters of Credit) and (ii) any branch
profits tax imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (i) above (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If any Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note or Letter of Credit to any Lender or the Administrative Agent, (A) the sum
payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 4.11) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the amount such party would have received had no
such deductions been made, (B) such Borrower shall make such deductions, (C)
such Borrower
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shall pay the full amount deducted to the relevant taxing authority or other
authority in accordance with applicable law, and (D) such Borrower shall deliver
to the Administrative Agent evidence of such payment to the relevant taxing
authority or other authority in the manner provided in Section 4.11(d). No
Borrower shall, however, be required to pay any amounts pursuant to clause (A)
of the preceding sentence to any Foreign Lender or the Administrative Agent not
organized under the laws of the United States of America or a state thereof (or
the District of Columbia) if such Foreign Lender or the Administrative Agent
fails to comply with the requirements of paragraph (e) of this Section 4.11 or
Section 4.8(d), as the case may be.
(b) Stamp and Other Taxes. In addition, the Borrowers shall pay
any present or future stamp, registration, recordation or documentary taxes or
any other similar fees or charges or excise or property taxes, levies of the
United States or any state or political subdivision thereof or any applicable
foreign jurisdiction which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement, the Loans, the Letters of Credit, the other Loan Documents, or the
perfection of any rights or security interest in respect thereto (hereinafter
referred to as "Other Taxes").
(c) Indemnity. Each Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 4.11) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted. A
certificate as to the amount of such payment or liability prepared by a Lender
or the Administrative Agent, absent manifest error, shall be conclusive,
provided that if the Borrowers reasonably believe that such Taxes or Other Taxes
were not correctly or legally asserted, such Lender or the Administrative Agent
(as the case may be) shall use reasonable efforts to cooperate with the
Borrowers, at the Borrowers' expense, to obtain a refund of such Taxes or Other
Taxes. Such indemnification shall be made within thirty (30) days from the date
such Lender or the Administrative Agent (as the case may be) makes written
demand therefor. If a Lender or the Administrative Agent shall become aware that
it is entitled to receive a refund in respect of Taxes or Other Taxes, it
promptly shall notify the respective Borrower of the availability of such refund
and shall, within sixty (60) days after receipt of a request by such Borrower
pursue or timely claim such refund at such Borrower's expense. If any Lender or
the Administrative Agent receives a refund in respect of any Taxes or Other
Taxes for which such Lender or the Administrative Agent has received payment
from any Borrower hereunder, it promptly shall repay such refund (plus interest
received, if any) to such Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by such Borrower under this Section 4.11 with
respect to Taxes or Other Taxes giving rise to such refund), provided that such
Borrower, upon the request of such Lender or the Administrative Agent, agrees to
return such refund (plus any penalties, interest or other charges required to be
paid) to such Lender or the Administrative Agent in the event such Lender or the
Administrative Agent is required to repay such refund to the relevant taxing
authority.
(d) Evidence of Payment. Within thirty (30) days after the date of
any payment of Taxes or Other Taxes, the respective Borrower shall furnish to
the Administrative Agent, at its
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address referred to in Section 13.1, the original or a certified copy of a
receipt evidencing payment thereof or other evidence of payment satisfactory to
the Administrative Agent.
(e) Delivery of Tax Forms. Each Foreign Lender shall deliver to
the Borrowers, with a copy to the Administrative Agent, on the Closing Date or
concurrently with the delivery of the relevant Assignment and Acceptance, as
applicable, (i) two United States Internal Revenue Service Forms 4224 or Forms
1001, as applicable (or successor forms) properly completed and certifying in
each case that such Foreign Lender is entitled to a complete exemption from
withholding or deduction for or on account of any United States federal income
taxes, and (ii) an Internal Revenue Service Form W-8 or W-9 or successor
applicable form, as the case may be, to establish an exemption from United
States backup withholding taxes. Each Foreign Lender further agrees to deliver
to the Borrowers, with a copy to the Administrative Agent, a Form 1001 or 4224
and Form W-8 or W-9, or successor applicable forms or manner of certification,
as the case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrowers, certifying in the case
of a Form 1001 or 4224 that such Foreign Lender is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income taxes (unless in any such case an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders such
forms inapplicable or the exemption to which such forms relate unavailable and
such Foreign Lender notifies the Borrowers and the Administrative Agent that it
is not entitled to receive payments without deduction or withholding of United
States federal income taxes) and, in the case of a Form W-8 or W-9, establishing
an exemption from United States backup withholding tax.
(f) Survival. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrowers contained in this Section 4.11 shall survive the payment in full of
the Obligations and the termination of the 364 Day Facility Commitment and the
Five Year Facility Commitment, but shall be limited in duration to the
applicable statute of limitations for Taxes or Other Taxes for which
indemnification is sought.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1 CLOSING.
The parties hereto shall execute and deliver this Agreement (the
"Closing") as of 9:00 a.m. (Charlotte time) on April 16, 1999 or on such other
date and at such other time as the parties hereto shall mutually agree (the
"Closing Date").
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SECTION 5.2 CONDITIONS TO CLOSING.
The obligations of the Lenders to close this Agreement are subject to
the satisfaction or waiver of each of the following conditions:
(a) Executed Loan Documents. This Agreement, the Revolving Credit
Notes and all other applicable Loan Documents shall have been duly authorized,
executed and delivered to the Administrative Agent by the parties thereto, shall
be in full force and effect and no default (including without limitation a
Default) shall exist thereunder, and the Credit Parties shall have delivered
original counterparts thereof to the Administrative Agent.
(b) Closing Certificates; etc.
(i) Officers' Certificates. The Administrative Agent shall have
received a certificate from a Responsible Officer on behalf of each
Credit Party, in form and substance reasonably satisfactory to the
Administrative Agent, to the effect that all representations and
warranties of such Credit Party contained in this Agreement and the
other Loan Documents are true, correct and complete in all material
respects; that such Credit Party is not in violation of any of the
covenants contained in this Agreement and the other Loan Documents;
that, after giving effect to the transactions contemplated by this
Agreement, no Default or Event of Default has occurred and is
continuing; and that each of the closing conditions has been satisfied
or waived (assuming satisfaction of the Administrative Agent where not
advised otherwise).
(ii) General Certificates. The Administrative Agent shall have
received a certificate of the secretary, assistant secretary or general
counsel of each Credit Party certifying as to the incumbency and
genuineness of the signature of each officer of such Credit Party
executing Loan Documents to which it is a party and certifying that
attached thereto is a true, correct and complete copy of (A) the
articles of incorporation of such Credit Party and all amendments
thereto, certified as of a recent date by the appropriate Governmental
Authority in its jurisdiction of incorporation, (B) the bylaws of such
Credit Party as in effect on the date of such certifications, (C)
resolutions duly adopted by the Board of Directors of such Credit Party
authorizing, as applicable, the borrowings contemplated hereunder and
the execution, delivery and performance of this Agreement and the other
Loan Documents to which it is a party, and (D) each certificate
required to be delivered pursuant to Section 5.2(b)(iii).
(iii) Certificates of Good Standing. The Administrative Agent
shall have received long-form certificates as of a recent date of the
good standing of the Credit Parties and their Material Subsidiaries
under the laws of their respective jurisdictions of organization and
short-form certificates as of a recent date of the good standing of
each Borrower under the laws of each other jurisdiction where such
Borrower is qualified to do business and where a failure to be so
qualified could reasonably be expected to have a Material Adverse
Effect.
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(iv) Opinions of Counsel. The Administrative Agent shall have
received opinions in form and substance reasonably satisfactory to the
Administrative Agent of counsel to the Company and each of the
Designated Borrowers, addressed to the Administrative Agent and the
Lenders with respect to the Credit Parties, the Loan Documents and such
other matters as the Administrative Agent shall reasonably request.
(c) Consents; Defaults.
(i) Governmental and Third Party Approvals. The Borrowers shall
have obtained all approvals, authorizations and consents of any Person
and of all Governmental Authorities and courts having jurisdiction
necessary in order to enter into this Agreement and the other Loan
Documents as of the Closing Date. Additionally, there shall not exist
any judgment, order, injunction or other restraint issued or filed or a
hearing seeking injunctive relief or other restraint pending or
notified prohibiting or imposing materially adverse conditions upon the
transactions contemplated by this Agreement and the other Loan
Documents or otherwise referred to herein or therein.
(ii) No Event of Default. No Default or Event of Default shall
have occurred and be continuing.
(d) No Material Adverse Effect. Since May 30, 1998 nothing shall
have occurred (and neither the Administrative Agent nor the Lenders shall have
become aware of any facts or conditions not previously known) which has had, or
could reasonably be expected to have, a Material Adverse Effect.
(e) Financial Matters.
(i) Financial Statements. The Administrative Agent shall have
received the audited Consolidated financial statements of the Company
and its Subsidiaries for the fiscal year ended as of May 30, 1998 and
the unaudited Consolidated financial statements of the Company and its
Subsidiaries for the fiscal quarter ended as of November 28, 1998. Such
financial statements shall be in form and substance reasonably
satisfactory to the Administrative Agent.
(ii) Payment at Closing. The Borrowers shall have paid any
accrued and unpaid fees or commissions due hereunder (including,
without limitation, reasonable legal fees and expenses) to the
Administrative Agent and Lenders, and to any other Person such amount
as may be due thereto in connection with the transactions contemplated
hereby, including all taxes, fees and other charges in connection with
the execution, delivery, recording, filing and registration of any of
the Loan Documents.
(f) Litigation. Except as set forth in the Current SEC Reports, as
of the Closing Date, there shall be no actions, suits or proceedings pending or,
to the best knowledge of any Borrower, threatened (i) with respect to this
Agreement or any other Loan Document or (ii) which the Administrative Agent or
the Required Lenders shall reasonably determine could reasonably be expected to
have a Material Adverse Effect.
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(g) Termination of Prior Bank Commitments. All Prior Bank
Commitments shall have been (or will be upon the initial borrowing hereunder and
the application of the proceeds thereof) (i) paid in full, (ii) the commitments,
other obligations and rights of the Company and the lenders thereunder
terminated and (iii) either (A) all outstanding promissory notes issued by the
Company with respect thereto canceled and the originally executed copies thereof
returned to the Administrative Agent (who shall promptly forward such notes to
the Company) or (B) the Administrative Agent otherwise shall have received
evidence satisfactory to it that such Prior Bank Commitments have been
terminated; provided that arrangements may be made so that any outstanding
letter of credit issued under such committed facilities may remain outstanding
as necessary.
(h) Miscellaneous.
(i) Proceedings and Documents. All Loan Documents, opinions,
certificates and other instruments and all proceedings in connection
with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to the Administrative
Agent.
(ii) Year 2000. The Administrative Agent shall have received and
reviewed information in form and substance reasonably satisfactory to
it confirming that (A) the Company and its Subsidiaries are taking all
necessary and appropriate steps to ascertain the extent of, and to
quantify and successfully address, business and financial risks facing
the Company and its Subsidiaries as a result of what is commonly
referred to as the "Year 2000 Problem" (i.e., the inability of certain
computer applications to recognize and perform date sensitive functions
involving certain dates prior to and after December 31, 1999),
including risks resulting from the failure of key vendors and customers
of the Borrower and its Subsidiaries to successfully address the Year
2000 Problem, and (B) the Company's and its Subsidiaries' material
computer applications and those of its key vendors and customers will,
on a timely basis, adequately address the Year 2000 Problem in each
case sufficient to avoid a Material Adverse Effect.
(iii) Accuracy and Completeness of Information. All information
taken as an entirety made available to the Administrative Agent or the
Lenders by the Credit Parties or any of their representatives in
connection with the transactions contemplated hereby ("Information") is
and will be complete and correct in all material respects as of the
date made available to the Administrative Agent and does not and will
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements contained therein not
misleading.
SECTION 5.3 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligation of each Lender to make any Extension of Credit hereunder
(including the initial Extension of Credit to be made hereunder) is subject to
the satisfaction of the following conditions precedent on the relevant borrowing
or issue date, as applicable:
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(a) Continuation of Representations and Warranties. The
representations and warranties contained in Article VI shall be true and correct
in all material respects on and as of such borrowing or issuance date with the
same effect as if made on and as of such date, except for any representation and
warranty made as of an earlier date, which representation and warranty shall
remain true and correct in all material respects as of such earlier date.
(b) No Existing Default. No Default or Event of Default shall have
occurred and be continuing hereunder (i) on the borrowing date with respect to
such Loan or after giving effect to the Loans to be made on such date or (ii) on
the issue date with respect to such Letter of Credit or after giving effect to
such Letters of Credit on such date.
(c) Notice of Revolving Credit Borrowing. The Administrative Agent
shall have received a Notice of Revolving Credit Borrowing from the relevant
Borrower in accordance with Section 2.2(a) or a Competitive Bid Request in
accordance with Section 2.5(a) and a Notice of Account Designation specifying
the account or accounts to which the proceeds of any Loans made after the
Closing Date are to be disbursed.
The occurrence of the Closing Date and the acceptance by any Borrower
of the benefits of each Extension of Credit hereunder shall constitute a
representation and warranty by such Borrower to the Administrative Agent and
each of the Lenders that all the conditions specified in Sections 5.2 and 5.3
and applicable to such borrowing have been satisfied as of that time. All of the
Notes, certificates, legal opinions and other documents and papers referred to
in Sections 5.2 and 5.3, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance reasonably satisfactory to the Administrative Agent.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES
SECTION 6.1 REPRESENTATIONS AND WARRANTIES.
To induce the Administrative Agent and Lenders to enter into this
Agreement and to induce the Lenders to make Extensions of Credit, each Credit
Party hereby represents and warrants to the Administrative Agent and Lenders
that:
(a) Organization; Power; Qualification. Each of the Credit Parties
and their Material Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation,
has the power and authority to own its properties and to carry on its business
as now being and hereafter proposed to be conducted and is duly qualified and
authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and
authorization, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
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(b) Ownership. Each Subsidiary of each of the Credit Parties as of
the Closing Date is listed on Schedule 6.l(b). As of the Closing Date, all
outstanding shares of each such Subsidiary have been duly authorized and validly
issued and are fully paid and nonassessable. As of the Closing Date, there are
no outstanding stock purchase warrants, subscriptions, options, securities,
instruments or other rights of any type or nature whatsoever, which are
convertible into, exchangeable for or otherwise provide for or permit the
issuance of capital stock of the Credit Parties or their Subsidiaries, except as
described on Schedule 6.1(b).
(c) Authorization of Agreement, Loan Documents and Borrowing. Each
of the Credit Parties and, if applicable, their Subsidiaries has the right,
power and authority and has taken all necessary corporate and other action to
authorize the execution, delivery and performance of each of the Loan Documents
to which it is a party in accordance with its respective terms. Each of the Loan
Documents has been duly executed and delivered by the duly authorized officers
of the Credit Parties and each of their Subsidiaries party thereto, as
applicable, and each such document constitutes the legal, valid and binding
obligation of the Credit Parties and, if applicable, each of their Subsidiaries
party thereto, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar state or federal debtor relief laws from time to time in effect which
affect the enforcement of creditors' rights in general and the availability of
equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with
Laws, Etc. The execution, delivery and performance by the Credit Parties and
their Subsidiaries of the Loan Documents to which each such Person is a party,
in accordance with their respective terms, the borrowings hereunder and the
transactions contemplated hereby do not and will not, by the passage of time,
the giving of notice or otherwise, (i) require any of the Credit Parties or any
of their Subsidiaries to obtain any Governmental Approval not otherwise already
obtained or violate any Applicable Law relating to the Credit Parties or any of
their Subsidiaries, (ii) conflict with, result in a breach of or constitute a
default under the articles of incorporation, bylaws or other organizational
documents of the Credit Parties or any of their Subsidiaries or any indenture or
other material agreement or instrument to which such Person is a party or by
which any of its properties may be bound or any Governmental Approval relating
to such Person except as could not reasonably be expected to have a Material
Adverse Effect, or (iii) result in or require the creation or imposition of any
material Lien upon or with respect to any property now owned or hereafter
acquired by such Person.
(e) Compliance with Law; Governmental Approvals. Other than with
respect to environmental matters, which are treated exclusively in Section
6.1(h) hereof, each of the Credit Parties and their respective Subsidiaries (i)
has all Governmental Approvals required by any Applicable Law for it to conduct
its business, each of which is in full force and effect, is final and not
subject to review on appeal and is not the subject of any pending or, to the
best of the Credit Parties' knowledge, threatened attack by direct or collateral
proceeding, and (ii) is in compliance with each Governmental Approval applicable
to it and in compliance with all other Applicable Laws relating to it or any of
its respective properties; in each case, except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
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(f) Tax Returns and Payments. Each of the Credit Parties and their
respective Subsidiaries has timely filed or caused to be filed all federal and
state, local and other tax returns required by Applicable Law to be filed, and
has paid, or made adequate provision for the payment of, all federal and state,
local and other taxes, assessments and governmental charges or levies upon it
and its property, income, profits and assets which are due and payable, except
taxes (i) that are being contested in good faith by appropriate proceedings and
for which such Credit Party or Subsidiary, as applicable, has set aside on its
books adequate reserves or (ii) to the extent the failure to do so could not
reasonably be expected to have a Material Adverse Effect. No Governmental
Authority has asserted any material Lien or other claim against the Credit
Parties or any Subsidiary thereof with respect to unpaid taxes which has not
been discharged or resolved. The charges, accruals and reserves on the books of
each of the Credit Parties and any of their respective Subsidiaries in respect
of federal and all material state, local and other taxes for all Fiscal Years
and portions thereof since the organization of each of the Credit Parties and
any of their Subsidiaries are, in the judgment of the Credit Parties, adequate,
and the Credit Parties do not anticipate any material additional taxes or
assessments for any of such years.
(g) Intellectual Property Matters. Each of the Credit Parties and
its Subsidiaries owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, trade names, trade name rights,
copyrights and rights with respect to the foregoing which are required to
conduct its business except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect. No event has occurred which, to the
knowledge of the Credit Parties, permits, or after notice or lapse of time or
both would permit, the revocation or termination of any such rights, and, to the
knowledge of the Credit Parties, neither the Credit Parties nor any Subsidiary
thereof is liable to any Person for infringement under Applicable Law with
respect to any such rights as a result of its business operations, except as
could not reasonably be expected to have a Material Adverse Effect.
(h) Environmental Matters. Except as set forth in the Current SEC
Reports or as otherwise could not reasonably be expected to have a Material
Adverse Effect:
(i) The properties of the Credit Parties and their Subsidiaries
(including soils, surface waters, groundwaters on, at or under such
properties) do not contain and are not otherwise affected by, and to
the Credit Parties' knowledge have not previously contained or been
affected by, any Hazardous Materials in amounts or concentrations which
(A) constitute or constituted a violation of applicable Environmental
Laws or (B) could give rise to liability or obligation under applicable
Environmental Laws;
(ii) The properties of the Credit Parties and their Subsidiaries
and all operations conducted in connection therewith are in compliance,
and have been in compliance, with all applicable Environmental Laws,
and there are no Hazardous Materials at, under or about such properties
or such operations which could reasonably be expected to interfere with
the continued operation of such properties;
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(iii) The Credit Parties and their Subsidiaries have obtained,
are in compliance with, and have made all appropriate filings for
issuance or renewal of, all permits, licenses, and other governmental
consents required by applicable Environmental Laws ("Environmental
Permits"), and all such Environmental Permits are in full force and
effect;
(iv) Neither any of the Credit Parties nor any Subsidiary
thereof has received any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws, nor do the
Credit Parties have knowledge or reason to believe that any such notice
will be received or is being threatened;
(v) To the knowledge of the Credit Parties, Hazardous Materials
have not been transported or disposed of from the properties of the
Credit Parties or any of their Subsidiaries in violation of, or in a
manner or to a location which could reasonably be expected to give rise
to liability under, Environmental Laws, nor, to the knowledge of the
Credit Parties, have any Hazardous Materials been generated, treated,
stored or disposed of at, on or under any of such properties in
violation of, or in a manner which could reasonably be expected to give
rise to liability under, any Environmental Laws;
(vi) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Credit Parties,
threatened, under any Environmental Law to which any of the Credit
Parties or any Subsidiary thereof has been or will be named as a party,
nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to the properties or operations of the Credit Parties and their
Subsidiaries; and
(vii) To the knowledge of the Credit Parties, there has been no
release, or threat of release, of Hazardous Materials at or from the
properties of the Credit Parties or any of their Subsidiaries, in
violation of or in amounts or in a manner that could reasonably be
expected to give rise to liability under Environmental Laws.
(i) ERISA.
(i) Each of the Credit Parties and each ERISA Affiliate is in
compliance with all applicable provisions of ERISA and the regulations
and published interpretations thereunder with respect to all Employee
Benefit Plans except where any such noncompliance could not reasonably
be expected to have a Material Adverse Effect. Except for any failure
that would not reasonably be expected to have a Material Adverse
Effect, each Employee Benefit Plan that is intended to be qualified
under Section 401(a) of the Code has been determined by the Internal
Revenue Service to be so qualified, and each trust related to such plan
has been determined to be exempt under Section 501(a) of the Code. No
liability that could reasonably be expected to have a Material Adverse
Effect has been incurred by the Credit Parties or any ERISA Affiliate
which remains
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unsatisfied for any taxes or penalties with respect to any Employee
Benefit Plan or any Multiemployer Plan;
(ii) No accumulated funding deficiency (as defined in Section
412 of the Code) has been incurred (without regard to any waiver
granted under Section 412 of the Code), nor has any funding waiver from
the Internal Revenue Service been received or requested with respect to
any Pension Plan except for any accumulated funding deficiency that
could not reasonably be expected to have a Material Adverse Effect;
(iii) Neither the Credit Parties nor any ERISA Affiliate has:
(A) engaged in a nonexempt prohibited transaction described in Section
406 of ERISA or Section 4975 of the Code, (B) incurred any liability to
the PBGC which remains outstanding other than the payment of premiums
and there are no premium payments which are due and unpaid, (C) failed
to make a required contribution or payment to a Multiemployer Plan, or
(D) failed to make a required installment or other required payment
under Section 412 of the Code except where any of the foregoing
individually or in the aggregate could not reasonably be expected to
have a Material Adverse Effect;
(iv) No Termination Event that could reasonably be expected to
result in a Material Adverse Effect has occurred or is reasonably
expected to occur; and
(v) No proceeding, claim, lawsuit and/or investigation is
existing or, to the knowledge of the Credit Parties, threatened
concerning or involving any Employee Benefit Plan that could reasonably
be expected to result in a Material Adverse Effect.
(j) Margin Stock. Neither the Credit Parties nor any Subsidiary
thereof is engaged principally or as one of its activities in the business of
extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" (as each such term is defined or used in Regulation U of the Board of
Governors of the Federal Reserve System). No part of the proceeds of any of the
Loans or Letters of Credit will be used for purchasing or carrying margin stock,
unless the Credit Parties shall have given the Administrative Agent and Lenders
prior notice of such event and such other information as is reasonably necessary
to permit the Administrative Agent and Lenders to comply, in a timely fashion,
with all reporting obligations required by Applicable Law, or for any purpose
which violates, or which would be inconsistent with, the provisions of
Regulation T, U or X of such Board of Governors.
(k) Government Regulation. Neither the Credit Parties nor any
Subsidiary thereof is an "investment company" or a company "controlled" by an
"investment company" (as each such term is defined or used in the Investment
Company Act of 1940, as amended) and neither the Credit Parties nor any
Subsidiary thereof is, or after giving effect to any Extension of Credit will
be, subject to regulation under the Public Utility Holding Company Act of 1935
or the Interstate Commerce Act, each as amended.
(l) Burdensome Provisions. Neither the Credit Parties nor any
Subsidiary thereof is a party to any indenture, agreement, lease or other
instrument, or subject to any corporate or partnership restriction, Governmental
Approval or Applicable Law which is so unusual or
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burdensome as in the foreseeable future could be reasonably expected to have a
Material Adverse Affect. The Credit Parties and their Subsidiaries do not
presently anticipate that future expenditures needed to meet the provisions of
any statutes, orders, rules or regulations of a Governmental Authority will be
so burdensome as to have a Material Adverse Effect.
(m) Financial Statements; Financial Condition: Etc.
(i) The (A) audited Consolidated balance sheets of the Credit
Parties and their Subsidiaries as of May 30, 1998; and the related
statements of income, stockholders' equity and cash flows for the
Fiscal Year then ended and (B) unaudited Consolidated balance sheet of
the Credit Parties and their Subsidiaries as of November 28, 1998, and
related unaudited interim statements of income, stockholders' equity
and cash flows, copies of which have been furnished to the
Administrative Agent and each Lender, are complete in all material
respects and fairly present in all material respects the assets,
liabilities and financial position of the Credit Parties and their
Subsidiaries as at such dates, and the results of the operations and
changes of financial position for the periods then ended, subject to
normal year end adjustments. All such financial statements, including
the related notes thereto, have been prepared in accordance with GAAP.
(ii) As of the Closing Date, (a) the sum of the assets, at a
fair valuation, of each Credit Party on a stand-alone basis and of the
Credit Parties and their Subsidiaries taken as a whole will exceed its
or their debts, respectively; (b) each Credit Party on a stand-alone
basis and the Credit Parties and their Subsidiaries taken as a whole
has not incurred and does not intend to incur, and does not believe
that it will incur, debts beyond its or their ability to pay such debts
as such debts mature, respectively; and (c) each Credit Party on a
stand-alone basis and the Credit Parties and their Subsidiaries taken
as a whole will have sufficient capital with which to conduct its or
their business, respectively. For purposes of this Section, "debt"
means any liability on a claim, and "claim" means (i) right to payment,
whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to
a payment, whether or not such right to an equitable remedy is reduced
to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured. The amount of contingent liabilities
at any time shall be computed as the amount that, in the light of all
the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
(n) No Material Adverse Change. Since May 30, 1998, there has been
no Material Adverse Effect.
(o) Liens. None of the properties and assets of the Credit
Parties or any Subsidiary thereof is subject to any Lien, except Liens
permitted pursuant to Section 9.3.
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(p) Debt and Support Obligations. Schedule 6.1(p) is a complete
and correct listing of all Debt and Support Obligations of the Credit Parties
and their Subsidiaries as of the Closing Date in excess of $10,000,000.
(q) Litigation. Except for matters existing on the Closing Date
and set forth in the Current SEC Reports, there are no actions, suits or
proceedings pending nor, to the knowledge of the Credit Parties, threatened
against or affecting the Credit Parties or any Subsidiary thereof or any of
their respective properties in any court or before any arbitrator of any kind or
before or by any Governmental Authority, which could reasonably be expected to
have a Material Adverse Effect.
(r) Absence of Defaults. Since November 28, 1998, to the knowledge
of the Borrowers, no event has occurred and is continuing which constitutes a
Default or an Event of Default.
(s) Absence of Bankruptcy Events. Since November 28, 1998, no
event has occurred or is continuing which constitutes a Bankruptcy Event.
(t) Accuracy and Completeness of Information. As of the Closing
Date, the Credit Parties have disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which they or any of their
Subsidiaries are subject, and all other matters known to them, other than
general market, economic and industry conditions, that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. The
written information, taken as a whole, furnished by or on behalf of the Credit
Parties to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) does not contain any material
misstatement of fact or omit 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 any projected financial
information, the Credit Parties represent only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time.
(u) Year 2000 Compliance. The Credit Parties have (i) initiated a
review and assessment of all areas within their and each of their Subsidiaries'
material business and operations that could reasonably be expected to be
adversely affected by the Year 2000 Problem, (ii) developed a plan, strategy or
other approach for addressing the Year 2000 Problem on a timely basis, and (iii)
implemented that plan, strategy or other approach. Based on the foregoing and
upon the Credit Parties' reliance on (i) any Year 2000 consulting services,
study, report or any other information performed or provided by any Person other
than the Credit Parties or any of their Subsidiaries and (ii) any certification
or assurance of Year 2000 compliance provided by any vendor, supplier, servicer,
manufacturer, customer or other provider of any hardware or software product or
other computer applications installed at the Credit Parties or any of their
Subsidiaries, the Credit Parties believe, as of the Closing Date, that all
computer applications (including, limited to the Credit Parties' inquiries,
those disclosed by their suppliers, vendors and customers) that are material to
their or any of their Subsidiaries' business and operations are reasonably
expected on a timely basis to be able to perform properly date-sensitive
functions for
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all dates before and after December 31, 1999 (that is, be "Year 2000
compliant"), except to the extent that a failure to do so could not reasonably
be expected to have a Material Adverse Effect.
(v) Property. The Credit Parties and their Subsidiaries have good
and marketable title to all material properties owned by them and valid
leasehold interests in all material properties leased by them, including all
property reflected in the Current SEC Reports and in the balance sheets referred
to in Section 6.l(m)(i) (except as sold or otherwise disposed of since the date
of such balance sheet in the ordinary course of business or as permitted by the
terms of this Agreement), free and clear of all Liens, except Liens permitted
pursuant to Section 9.3.
(w) Labor Practices. Neither the Credit Parties nor any of their
Subsidiaries is engaged in any unfair labor practices that could reasonably be
expected to have a Material Adverse Effect. There is (i) no unfair labor
practice complaint pending against any Credit Party or any of their Subsidiaries
or, to the knowledge of the Credit Parties, threatened against the Credit
Parties or any of their Subsidiaries, before the National Labor Relations Board,
and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Credit Parties or any
of their Subsidiaries or, to the knowledge of the Credit Parties, threatened
against the Credit Parties or any of their Subsidiaries, (ii) no strike, labor
dispute, slowdown or stoppage pending against the Credit Parties or any of their
Subsidiaries or, to the knowledge of the Credit Parties, threatened against the
Credit Parties or any of their Subsidiaries and (iii) no union representation
question exists with respect to the employees of the Credit Parties or any of
their Subsidiaries except (with respect to any matter specified in clause (i),
(ii) or (iii) above, either individually or in the aggregate) such as could not
reasonably be expected to have a Material Adverse Effect.
(x) SEC Reports. During the preceding three (3) Fiscal Years, the
Company and its Subsidiaries have filed all forms, reports, statements
(including proxy statements) and other documents (such filings by the Credit
Parties and their Subsidiaries are collectively referred to as the "SEC
Reports"), required to be filed by it with the Securities and Exchange
Commission. The SEC Reports (i) were prepared in all material respects in
accordance with the requirements of the Securities Act of 1933, as amended, and
the Securities Exchange Act of 1934, as amended, as the case may be, and the
rules and regulations of the Securities Exchange Commission thereunder
applicable to such SEC Reports at the time of filing thereof and (ii) did not at
the time they were filed contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, which untrue statement or omission was not corrected
in a subsequent SEC Report.
SECTION 6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.
All representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate related hereto, or
any of the Loan Documents (including but not limited to any such representation
or warranty made in or in connection with any amendment thereto) shall
constitute representations and warranties made under this Agreement. All
representations and warranties made under this Agreement shall be made or deemed
to be made at and as of the Closing Date, shall survive the Closing Date and
shall not be waived by the
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execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or any borrowing hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations (other than Obligations under Hedging
Agreements) have been paid and satisfied in full and the later of the 364 Day
Facility Termination Date or the Five Year Facility Termination Date, unless
consent has been obtained in the manner set forth in Section 13.11 hereof, the
Credit Parties will furnish or cause to be furnished to the Administrative Agent
and to the Lenders at their respective addresses as set forth on Schedule 13.1,
or such other office as may be designated by the Administrative Agent and
Lenders from time to time:
SECTION 7.1 FINANCIAL STATEMENTS.
(a) Quarterly Financial Statements. As soon as practicable and in
any event within forty-five (45) days after the end of each of the first three
fiscal quarters of each Fiscal Year, either (i) a copy of a report on Form 10-Q,
or any successor form, and any amendments thereto, filed by the Company with the
Securities and Exchange Commission with respect to the immediately preceding
fiscal quarter or (ii) an unaudited Consolidated balance sheet of the Company
and its Subsidiaries as of the close of such fiscal quarter and unaudited
Consolidated statements of income, stockholders' equity and cash flows for the
fiscal quarter then ended and that portion of the Fiscal Year then ended,
including the notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the
preceding Fiscal Year and prepared by the Company in accordance with GAAP and,
if applicable, containing disclosure of the effect on the financial position or
results of operations of any change in the application of accounting principles
and practices during the period, and certified by a Responsible Officer of the
Company to present fairly in all material respects the financial condition of
the Company and its Subsidiaries as of their respective dates and the results of
operations of the Company and its Subsidiaries for the respective periods then
ended, subject to normal year end adjustments.
(b) Annual Financial Statements. As soon as practicable and in any
event within ninety (90) days after the end of each Fiscal Year, either (i) a
copy of a report on Form 10-K, or any successor form, and any amendments
thereto, filed by the Company with the Securities and Exchange Commission with
respect to the immediately preceding Fiscal Year or (ii) an audited Consolidated
balance sheet of the Company and its Subsidiaries as of the close of such Fiscal
Year and audited Consolidated statements of income, stockholders' equity and
cash flows for the Fiscal Year then ended, including the notes thereto, all in
reasonable detail setting forth in comparative form the corresponding figures
for the preceding Fiscal Year and prepared by a nationally recognized
independent certified public accounting firm acceptable to the Administrative
Agent in accordance with GAAP and, if applicable, containing disclosure of the
effect on the financial position or results of operation of any change in the
application of accounting principles and practices during the year, and
accompanied by a report thereon by such
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certified public accountants that is not qualified with respect to scope
limitations imposed by the Company or any of its Subsidiaries or with respect to
accounting principles followed by the Company or any of its Subsidiaries not in
accordance with GAAP.
SECTION 7.2 OFFICER'S COMPLIANCE CERTIFICATE.
At each time financial statements are delivered pursuant to Section
7.1(a) or (b) a certificate of a Responsible Officer of the Company in the form
of Exhibit G attached hereto (an "Officer's Compliance Certificate") including
the calculations prepared by such Responsible Officer required to establish
whether or not the Credit Parties and their Subsidiaries are in compliance with
the financial covenants set forth in Section 9.1 hereof as at the end of each
respective period.
SECTION 7.3 ACCOUNTANTS' CERTIFICATE.
At each time financial statements are delivered pursuant to Section
7.1(b), a certificate of the independent public accountants certifying such
financial statements addressed to the Administrative Agent for the benefit of
the Lenders stating that in making the examination necessary for the
certification of such financial statements, they obtained no knowledge of any
Default or Event of Default or, if such is not the case, specifying such Default
or Event of Default and its nature and period of existence.
SECTION 7.4 OTHER REPORTS.
(a) Promptly after the filing thereof, a copy of (i) each report
or other filing made by any of the Credit Parties or any or their Subsidiaries
with the Securities and Exchange Commission and required by the Securities and
Exchange Commission to be delivered to the shareholders of the Credit Parties or
any or their Subsidiaries, (ii) each report made by the Credit Parties or any of
their Subsidiaries to the Securities and Exchange Commission on Form 8-K and
(iii) each final registration statement of the Credit Parties or any of their
Subsidiaries filed with the Securities and Exchange Commission, except in
connection with pension plans and other employee benefit plans; and
(b) Such other information regarding the operations, business
affairs and financial condition of the Credit Parties or any of their
Subsidiaries as the Administrative Agent or any Lender may reasonably request.
SECTION 7.5 NOTICE OF LITIGATION AND OTHER MATTERS.
Prompt (but in no event later than ten (10) Business Days after an
executive officer of any of the Credit Parties obtains knowledge thereof)
telephonic (confirmed in writing) or written notice of:
(a) the commencement of all proceedings and investigations by or
before any Governmental Authority and all actions and proceedings in any court
or before any arbitrator against or involving any of the Credit Parties or any
Subsidiary thereof or any of their respective
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properties, assets or businesses (i) which in the reasonable judgment of the
Credit Parties could reasonably be expected to have a Material Adverse Effect,
(ii) with respect to any material Debt of the Credit Parties or any of their
Subsidiaries or (iii) with respect to any Loan Document;
(b) any notice of any violation received by any of the Credit
Parties or any Subsidiary thereof from any Governmental Authority including,
without limitation, any notice of violation of Environmental Laws, which in the
reasonable judgment of the Credit Parties in any such case could reasonably be
expected to have a Material Adverse Effect;
(c) (i) any unfavorable determination letter from the Internal
Revenue Service regarding the qualification of an Employee Benefit Plan under
Section 401(a) of the Code (along with a copy thereof) which could reasonably be
expected to have a Material Adverse Effect, (ii) all notices received by any of
the Credit Parties or any ERISA Affiliate of the PBGC's intent to terminate any
Pension Plan or to have a trustee appointed to administer any Pension Plan,
(iii) all notices received by any of the Credit Parties or any ERISA Affiliate
from a Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA which could reasonably be
expected to have a Material Adverse Effect, (iv) the Credit Parties obtaining
knowledge or reason to know that the Credit Parties or any ERISA Affiliate has
filed or intends to file a notice of intent to terminate any Pension Plan under
a distress termination within the meaning of Section 4041(c) of ERISA and (v)
the occurrence of a Reportable Event;
(d) the occurrence of any event which constitutes, or which could
reasonably be expected to result in, a Default or an Event of Default; and
(e) the occurrence of any event which constitutes, or which could
reasonably be expected to result in, a Material Adverse Effect.
SECTION 7.6 ACCURACY OF INFORMATION.
All written information, reports, statements and other papers and data
furnished by or on behalf of the Credit Parties to the Administrative Agent or
any Lender (other than financial forecasts) whether pursuant to this Article VII
or any other provision of this Agreement, shall be, at the time the same is so
furnished, true and complete in all material respects.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations (other than any Obligations under any
Hedging Agreement) have been paid and satisfied in full and the 364 Day Facility
Commitment and the Five Year Facility Commitment have expired or been
terminated, unless consent has been obtained in the manner provided for in
Section 13.l1, the Credit Parties will, and will cause each of their respective
Subsidiaries to:
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SECTION 8.1 PRESERVATION OF CORPORATE EXISTENCE AND RELATED
MATTERS.
Except as permitted by Section 9.5, preserve and maintain its separate
corporate existence and all rights, franchises, licenses and privileges
necessary to the conduct of its business, and qualify and remain qualified as a
foreign corporation and authorized to do business in each jurisdiction where the
nature and scope of its activities require it to so qualify under Applicable
Law, except where the failure to so preserve and maintain its existence and
rights or to so qualify would not have a Material Adverse Effect.
SECTION 8.2 MAINTENANCE OF PROPERTY.
Protect and preserve all properties useful in and material to its
business, including copyrights, patents, trade names and trademarks; maintain in
good working order and condition all buildings, equipment and other tangible
real and personal property material to the conduct of its business, ordinary
wear and tear excepted; and from time to time make or cause to be made all
renewals, replacements and additions to such property necessary for the conduct
of its business, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times, except, in each case, where
the failure to do so would not have a Material Adverse Effect.
SECTION 8.3 INSURANCE.
Maintain insurance with financially sound and reputable insurance
companies against such risks and in such amounts as are consistent with past
practices and prudent business practice (and in any event consistent with normal
industry practice), and as may be required by Applicable Law.
SECTION 8.4 ACCOUNTING METHODS AND FINANCIAL RECORDS.
Maintain a system of accounting, and keep such books, records and
accounts (which shall be true and complete in all material respects) as may be
required or as may be necessary to permit the preparation of financial
statements in accordance with GAAP and in compliance with the regulations of any
Governmental Authority having jurisdiction over it or any of its properties.
SECTION 8.5 PAYMENT AND PERFORMANCE OF OBLIGATIONS.
(a) Pay and perform all Obligations under this Agreement and the
other Loan Documents.
(b) Pay and discharge (i) all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which penalties attach
thereto, and (ii) all other material indebtedness, obligations and liabilities
in accordance with customary trade practices; provided that the Credit Parties
or such Subsidiary may contest any item described in clause (i) or (ii) of this
Section 8.5(b) in good faith and by proper proceedings so long as adequate
reserves are maintained with respect thereto to the extent required by GAAP.
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(c) Perform all of its obligations under the terms of each mortgage,
indenture, security agreement, loan agreement or credit agreement and each other
agreement, contract or instrument by which it is bound, except where such
non-performances as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 8.6 COMPLIANCE WITH LAWS AND APPROVALS.
Observe and remain in compliance with all Applicable Laws and maintain
in full force and effect all Governmental Approvals, in each case applicable to
the conduct of its business, except where the failure to observe or comply could
not reasonably be expected to have a Material Adverse Effect.
SECTION 8.7 ENVIRONMENTAL LAWS.
In addition to and without limiting the generality of Section 8.6, (a)
comply with, and use best efforts to ensure such compliance by all tenants and
subtenants with all applicable Environmental Laws and obtain and comply with and
maintain, and ensure that all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws, except where the failure to
comply could not reasonably be expected to have a Material Adverse Effect, (b)
conduct and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws, and
promptly comply with all lawful orders and directives of any Governmental
Authority regarding Environmental Laws, except (i) where the failure to do so
could not reasonably be expected to have a Material Adverse Effect or (ii) to
the extent the Credit Parties or any of their Subsidiaries are contesting, in
good faith, any such requirement, order or directive before the appropriate
Governmental Authority so long as adequate reserves are maintained with respect
thereto to the extent required by GAAP, and (c) defend, indemnify and hold
harmless the Administrative Agent and the Lenders, and their respective parents,
Subsidiaries, Affiliates, employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the violation
of, noncompliance with or liability under any Environmental Laws applicable to
the operations or properties of the Credit Parties or such Subsidiaries, or any
orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, reasonable attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs and litigation
expenses, except to the extent that any of the foregoing directly result from
the gross negligence or willful misconduct of the party seeking indemnification
therefor.
SECTION 8.8 COMPLIANCE WITH ERISA.
In addition to and without limiting the generality of Section 8.6, (a)
comply with all applicable provisions of ERISA and the Code and the regulations
and published interpretations thereunder with respect to all Employee Benefit
Plans, except where the failure to so comply could not reasonably be expected to
have a Material Adverse Effect, (b) not take any action or
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fail to take action the result of which would result in a liability to the PBGC
or to a Multiemployer Plan in an amount that could reasonably be expected to
have a Material Adverse Effect, and (c) furnish to the Administrative Agent upon
the Administrative Agent's request such additional information about any
Employee Benefit Plan concerning compliance with this covenant as may be
reasonably requested by the Administrative Agent.
SECTION 8.9 CONDUCT OF BUSINESS.
Maintain substantially all of its businesses in substantially the same
fields as the businesses conducted on the Closing Date and in lines of business
reasonably related thereto or as otherwise permitted pursuant to the terms of
this Agreement.
SECTION 8.10 VISITS AND INSPECTIONS.
Permit representatives of the Administrative Agent or any Lender, from
time to time upon reasonable prior notice and during ordinary business hours, to
visit and inspect its properties; inspect and make extracts from its books,
records and files, including, but not limited to, management letters prepared by
independent accountants; and discuss with its principal officers, and its
independent accountants, its business, assets, liabilities, financial condition,
results of operations and business prospects.
SECTION 8.11 USE OF PROCEEDS.
Use the proceeds of the Extensions of Credit for the purposes set forth
in Section 2.1(b).
SECTION 8.12 YEAR 2000 COMPATIBILITY.
Take all actions reasonably necessary to assure that the Credit
Parties' computer based systems (which if not functional would have a Material
Adverse Effect) are able to operate and effectively process data in a manner
that is Year 2000 compliant (as defined in Section 6.1(u)). At the request of
the Administrative Agent or any Lender, the Credit Parties shall provide
information to the Administrative Agent concerning the Credit Parties' Year 2000
compliance.
ARTICLE IX
NEGATIVE COVENANTS
Until all of the Obligations (other than any Obligations under any
Hedging Agreement) have been paid and satisfied in full and the 364 Day Facility
Commitment and the Five Year Facility Commitment have expired or been terminated
unless consent has been obtained in the manner set forth in Section 13.11:
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SECTION 9.1 FINANCIAL COVENANTS.
(a) Maximum Leverage Ratio. As of the end of each fiscal quarter,
commencing with the end of the first fiscal quarter ending after the Closing
Date, the Credit Parties will not permit the Leverage Ratio to be greater than
2.75 to 1.00.
(b) Minimum Interest Coverage Ratio. As of the end of each fiscal
quarter, commencing with the end of the first fiscal quarter ending after the
Closing Date, the Company will not permit the Interest Coverage Ratio to be less
than 4.00 to 1.00.
SECTION 9.2 LIMITATIONS ON LIENS.
The Credit Parties will not, and will not permit any of their
Subsidiaries to, create, incur, assume or suffer to exist any Lien on, or with
respect to, any of their assets or properties (including without limitation
shares of capital stock or other ownership interests), real or personal, whether
now owned or hereafter acquired, except:
(a) Liens existing on the Closing Date and securing amounts
not in excess of $l0,000,000 in aggregate principal amount;
(b) Liens for taxes, assessments and other governmental charges or
levies not yet due or as to which the period of grace, if any, related thereto
has not expired or which are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent required by GAAP;
(c) The claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;
(d) Liens consisting of deposits or pledges made in the ordinary
course of business in connection with, or to secure payment of, obligations
under workers' compensation, unemployment insurance or similar legislation or
obligations under customer service contracts;
(e) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, detract from the value of any material parcel of real property or
impair the use thereof in the ordinary conduct of business;
(f) Liens in favor of the Administrative Agent for the benefit of
the Administrative Agent and the Lenders;
(g) Liens on the property or assets of any Subsidiary existing at
the time such Subsidiary becomes a Subsidiary of a Credit Party and not incurred
in contemplation thereof, as
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long as the outstanding principal amount of the Debt secured thereby is not
voluntarily increased by such Subsidiary after the date such Subsidiary becomes
a Subsidiary of such Credit Party;
(h) Liens on the property or assets of the Credit Parties or any
Subsidiary securing Debt which is incurred to finance the acquisition of such
property or assets, provided that (i) each such Lien shall be created
substantially simultaneously with the acquisition of the related property or
assets; (ii) each such Lien does not at any time encumber any property other
than the related property or assets financed by such Debt; (iii) the principal
amount of Debt secured by each such Lien is not increased; and (iv) the
principal amount of Debt secured by each such Lien shall at no time exceed 100%
of the original purchase price of such related property or assets at the time
acquired; and
(i) Liens not otherwise permitted by this Section 9.2 securing Debt
not in excess of five percent (5%) of Consolidated Total Assets in the aggregate
at any time outstanding.
SECTION 9.3 LIMITATIONS ON MERGERS AND LIQUIDATION.
None of the Credit Parties will, or will permit any of its Subsidiaries
to, merge, consolidate or enter into any similar combination with any other
Person or liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), except:
(a) Any Credit Party or a Subsidiary may merge with another
Person, provided that (i) such Person is organized under the law of the United
States or one of its states, (ii) such Credit Party or the Subsidiary, as the
case may be, is the corporation surviving such merger, (iii) immediately prior
to and after giving effect to such merger, no Default or Event of Default exists
or would exist and (iv) the Board of Directors of such Person has approved such
merger;
(b) Any Wholly-Owned Subsidiary of a Credit Party may merge
into a Credit Party or any other Wholly-Owned Subsidiary of a Credit Party; and
(c) Any Wholly-Owned Subsidiary of a Credit Party may liquidate,
wind-up or dissolve itself into a Credit Party or any other Wholly-Owned
Subsidiary of a Credit Party.
SECTION 9.4 LIMITATIONS ON SALE OR TRANSFER OF ASSETS.
The Credit Parties will not, and will not permit any of their
Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of:
(a) All or substantially all of the property, business or assets of
the Company and its Subsidiaries on a Consolidated basis;
(b) Any of their property, business or assets if such transaction
would reasonably be expected to have a Material Adverse Effect; or
(c) Any of their property, business or assets if immediately prior
to or after giving effect to such transaction a Default or an Event of Default
exists or would exist.
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SECTION 9.5 PROHIBITIONS ON LIMITATIONS ON DIVIDENDS AND
DISTRIBUTIONS.
The Credit Parties will not permit any Subsidiary to agree to, incur,
assume or suffer to exist any restriction, limitation or other encumbrance (by
covenant or otherwise) on the ability of such Subsidiary to make any payment to
a Credit Party or any of its Subsidiaries (in the form of dividends,
intercompany advances or otherwise), except:
(a) Restrictions and limitations existing on the Closing Date and
described on Schedule 9.5;
(b) Restrictions and limitations applicable to a Subsidiary
existing at the time such Subsidiary becomes a Subsidiary of a Credit Party and
not incurred in contemplation thereof, as long as no such restriction or
limitation is made more restrictive after the date such Subsidiary becomes a
Subsidiary of such Credit Party; and
(c) Other restrictions and limitations that are not material either
individually or in the aggregate.
SECTION 9.6 TRANSACTIONS WITH AFFILIATES.
The Credit Parties will not, and will not permit any of their
Subsidiaries to, directly or indirectly (a) make any loan or advance to, or
purchase or assume any note or other obligation to or from, any of its officers,
directors, shareholders or Affiliates, or to or from any member of the immediate
family of any of its officers, directors, shareholders or Affiliates, other than
(i) loans or advances to customers of the Credit Parties and their Subsidiaries
in the ordinary course of business which are arm's length, and (ii) any other
loan or advance or assumption that would not cause the aggregate amount of all
such loans and advances and assumed notes and advances to exceed $5,000,000, (b)
enter into, or be a party to, any subcontract of any operations or other
transaction with any of its Affiliates, except pursuant to the reasonable
requirements of its business and upon fair and reasonable terms that are no less
favorable to it than it would obtain in a comparable arm's length transaction
with a Person not its Affiliate and except for transactions which are not
material either individually or in the aggregate. Nothing contained in this
Section 9.6 shall prohibit the Credit Parties or any of their Subsidiaries that
have obtained an ownership interest in a customer in connection with a loan or
credit workout to provide non-standard payment or other terms to such customer
or otherwise to do business with such customer in the ordinary course of
business.
SECTION 9.7 CERTAIN ACCOUNTING CHANGES.
The Credit Parties will not (a) change their Fiscal Year ends in order
to avoid a Default or an Event of Default or if a Material Adverse Effect would
result therefrom or (b) make any material change in their accounting treatment
and reporting practices except as required by GAAP.
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SECTION 9.8 AMENDMENTS; PAYMENTS AND PREPAYMENTS OF SUBORDINATED
DEBT.
At any time after the occurrence of a Default or an Event of Default
and during the continuance thereof, the Credit Parties will not, and will not
permit any of their Subsidiaries to, amend or modify (or permit the modification
or amendment of) any of the terms or provisions of any Subordinated Debt, or
cancel or forgive, make any voluntary or optional payment or prepayment on, or
redeem or acquire for value (including without limitation by way of depositing
with any trustee with respect thereto money or securities before due for the
purpose of payment when due) any Subordinated Debt.
SECTION 9.9 SALE LEASEBACK TRANSACTIONS.
The Credit Parties will not, and will not permit any of their
Subsidiaries to, sell or transfer any material property or assets to anyone
(other than the Company or a Wholly-Owned Subsidiary of the Company) with the
intention of taking back a lease of such property or assets or any similar
property or assets, except in connection with a lease for a temporary period
during or at the end of which it is intended that the use by such Credit Party
or its Subsidiary of such property or assets will be discontinued.
ARTICLE X
GUARANTY OF THE COMPANY
SECTION 10.1 GUARANTY OF PAYMENT.
Subject to Section 10.7 below, the Company hereby unconditionally
guarantees to each Lender and the Administrative Agent the prompt payment of the
Guaranteed Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration or otherwise). This guaranty is a guaranty
of payment and not solely of collection and is a continuing guaranty and shall
apply to all Guaranteed Obligations whenever arising.
SECTION 10.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Company hereunder are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of this Agreement, or any other agreement or instrument referred
to herein, to the fullest extent permitted by Applicable Law, irrespective of
any other circumstance whatsoever which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor. The Company agrees that
this guaranty may be enforced by the Lenders without the necessity at any time
of resorting to or exhausting any security or collateral and without the
necessity at any time of having recourse to the Notes, this Agreement or any
other Loan Document or any collateral, if any, hereafter securing the Guaranteed
Obligations or otherwise and the Company hereby waives the right to require the
Lenders to proceed against a Designated Borrower or any other Person (including
a co-guarantor) or to require the Lenders to pursue any other remedy or enforce
any other right. The Company
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further agrees that it shall have no right of subrogation, indemnity,
reimbursement or contribution against a Designated Borrower or any other
guarantor of the Guaranteed Obligations for amounts paid under this guaranty
until such time as the Lenders have been paid in full, all commitments under
this Agreement have been terminated and no Person or Governmental Authority
shall have any right to request any return or reimbursement of funds from the
Lenders in connection with monies received under this Agreement. The Company
further agrees that nothing contained herein shall prevent the Lenders from
suing on the Notes, this Agreement or any other Loan Document or foreclosing its
security interest in or Lien on any collateral, if any, securing the Guaranteed
Obligations or from exercising any other rights available to it under this
Agreement, the Notes, or any other instrument of security, if any, and the
exercise of any of the aforesaid rights and the completion of any foreclosure
proceedings shall not constitute a discharge of any of the Company's obligations
hereunder; it being the purpose and intent of the Company that its obligations
hereunder shall be absolute, independent and unconditional under any and all
circumstances. Neither the Company's obligations under this guaranty nor any
remedy for the enforcement thereof shall be impaired, modified, changed or
released in any manner whatsoever by an impairment, modification, change,
release or limitation of the liability of a Designated Borrower or by reason of
the bankruptcy or insolvency of such Borrower. The Company waives any and all
notice of the creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance of by the Administrative Agent or
any Lender upon this guaranty or acceptance of this guaranty. The Guaranteed
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this guaranty. All dealings between the Designated Borrowers and the
Company, on the one hand, and the Administrative Agent and the Lenders, on the
other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon this guaranty.
SECTION 10.3 MODIFICATIONS.
The Company agrees that (a) all or any part of the security which
hereafter may be held for the Guaranteed Obligations, if any, may be exchanged,
compromised or surrendered from time to time; (b) the Lenders shall not have any
obligation to protect, perfect, secure or insure any such security interests,
liens or encumbrances which hereafter may be held, if any, for the Guaranteed
Obligations or the properties subject thereto; (c) the time or place of payment
of the Guaranteed Obligations may be changed or extended, in whole or in part,
to a time certain or otherwise, and may be renewed or accelerated, in whole or
in part; (d) a Designated Borrower and any other party liable for payment under
this Agreement may be granted indulgences generally; (e) any of the provisions
of the Notes, this Agreement or any other Loan Document may be modified, amended
or waived; (f) any party (including any co-guarantor) liable for the payment
thereof may be granted indulgences or be released; and (g) any deposit balance
for the credit of a Designated Borrower or any other party liable for the
payment of the Guaranteed Obligations or liable upon any security therefor may
be released, in whole or in part, at, before or after the stated, extended or
accelerated maturity of the Guaranteed Obligations, all without notice to or
further assent by the Company, which shall remain bound thereon, notwithstanding
any such exchange, compromise, surrender, extension, renewal, acceleration,
modification, indulgence or release.
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SECTION 10.4 WAIVER OF RIGHTS.
The Company expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this guaranty by the Lenders and of
all Extensions of Credit to a Designated Borrower by the Lenders; (b)
presentment and demand for payment or performance of any of the Guaranteed
Obligations; (c) protest and notice of dishonor or of default (except as
specifically required in this Agreement) with respect to the Guaranteed
Obligations or with respect to any security therefor; (d) notice of the Lenders
obtaining, amending, substituting for, releasing, waiving or modifying any Lien,
if any, hereafter securing the Guaranteed Obligations, or the Lenders'
subordinating, compromising, discharging or releasing such Liens, if any; (e)
all other notices to which the Company might otherwise be entitled in connection
with the guaranty evidenced by this Article X; and (f) demand for payment under
this guaranty.
SECTION 10.5 REINSTATEMENT.
The obligations of the Company under this Article X shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and the Company agrees that it will indemnify the
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) incurred by the Administrative Agent or such Lender in connection with
such rescission or restoration, including any such costs and expenses incurred
in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
SECTION 10.6 REMEDIES.
The Company agrees that, as between the Company, on the one hand, and
the Administrative Agent and the Lenders, on the other hand, the Guaranteed
Obligations may be declared to be forthwith due and payable as provided in
Section 11.2 (and shall be deemed to have become automatically due and payable
in the circumstances provided in Section 11.2) notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing such
Guaranteed Obligations from becoming automatically due and payable) as against
any other Person and that, in the event of such declaration (or such Guaranteed
Obligations being deemed to have become automatically due and payable), such
Guaranteed Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Company.
SECTION 10.7 LIMITATION OF GUARANTY.
Notwithstanding any provision to the contrary contained herein, to the
extent the obligations of the Company shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or transfers)
then the obligations of the Company hereunder shall be limited to the maximum
amount that is permissible under Applicable Law (whether federal or
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state and including, without limitation, the Federal Bankruptcy Code (as now or
hereinafter in effect)).
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 EVENTS OF DEFAULT.
Each of the following shall constitute an Event of Default, whatever
the reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment or order of any court
or any order, rule or regulation of any Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement
Obligation. Any Borrower shall default in any payment of principal of any Loan,
Note or Reimbursement Obligation when and as due (whether at maturity, by reason
of acceleration or otherwise).
(b) Other Payment Default. Any Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
any interest, fees or other amounts owing on any Loan, Note or Reimbursement
Obligation or the payment of any other Obligation (other than any Obligation
under any Hedging Agreement), and such default shall continue unremedied for
three (3) Business Days.
(c) Misrepresentation. Any representation, warranty or statement made
or deemed to be made by any Credit Party or any of its Subsidiaries, if
applicable, under this Agreement, any Loan Document or any amendment hereto or
thereto or in any certificate delivered to the Administrative Agent or to any
Lender pursuant hereto and thereto, shall at any time prove to have been
incorrect or misleading in any material respect when made or deemed made.
(d) Default in Performance of Certain Covenants. Any of the Credit
Parties shall default in the performance or observance of any covenant or
agreement contained in Sections 9.1, 9.2, 9.3 or 9.4 of this Agreement. Any of
the Credit Parties shall default in the performance or observance of any
covenant or agreement contained in Article IX, other than those contained in
Sections 9.1, 9.2, 9.3 or 9.4, and such default shall continue for a period of
fifteen (15) days after the earlier of a Responsible Officer of a Credit Party
becoming aware of such default or written notice thereof has been given to the
Borrowers by the Administrative Agent.
(e) Default in Performance of Other Covenants and Conditions. Any of
the Credit Parties or any Subsidiary thereof, if applicable, shall default in
the performance or observance of any term, covenant, condition or agreement
contained in this Agreement (other than as specifically provided for otherwise
in this Section 11.1) or any other Loan Document and such default shall continue
for a period of thirty (30) days after the earlier of a Responsible Officer of a
Credit Party becoming aware of such default or written notice thereof has been
given to the Borrowers by the Administrative Agent.
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(f) Hedging Agreement. Any termination payments in an amount greater
than $5,000,000 shall be due by any Credit Party under any Hedging Agreement and
such amount is not paid within thirty (30) Business Days of the due date
thereof.
(g) Debt Cross-Default. Any of the Credit Parties or any of their
Subsidiaries shall (i) default in the payment of any Debt (other than Debt under
this Agreement, the Notes or any Reimbursement Obligation) the aggregate
outstanding amount of which Debt is in excess of $10,000,000, beyond the period
of grace if any, provided in the instrument or agreement under which such Debt
was created, or (ii) default in the observance or performance of any other
agreement or condition relating to any Debt (other than Debt under this
Agreement, the Notes or any Reimbursement Obligation), the aggregate outstanding
amount of which Debt is in excess of $10,000,000 or contained in any instrument
or agreement evidencing, securing or relating thereto or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Debt (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, any such Debt to become due prior to its stated maturity
(any such notice having been given and any applicable grace period having
expired).
(h) Change in Control. An event described in clause (i), (ii) or (iii)
below shall have occurred: (i) the membership of the Company's Board of
Directors changes by more than 50% during any 12-month period, or the number of
members on the Company's Board of Directors either increases or decreases by
more than 50% during any 12-month period, (ii) any person or group of persons
(within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as
amended) shall obtain ownership or control in one or more series of transactions
of more than 33% of the common stock or 33% of the voting power of the Company
entitled to vote in the election of members of the board of directors of the
Company or (iii) there shall have occurred under any indenture or other
instrument evidencing any debt in excess of $10,000,000 any "change in control"
(as defined in such indenture or other evidence of debt) obligating the Company
to repurchase, redeem or repay all or any part of the debt or capital stock
provided for therein (any such event, a "Change in Control").
(i) Voluntary Bankruptcy Proceeding. Any Credit Party or any Material
Subsidiary thereof shall (i) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect), (ii) file a petition seeking to
take advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for adjustment of debts,
(iii) consent to or fail to contest in a timely and appropriate manner any
petition filed against it in an involuntary case under such bankruptcy laws or
other laws, (iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of itself or of a substantial part of
its property, domestic or foreign, (v) admit in writing its inability to pay its
debts as they become due, (vi) make a general assignment for the benefit of
creditors, or (vii) take any corporate action for the purpose of authorizing any
of the foregoing.
(j) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against any Credit Party or any Material Subsidiary thereof in any
court of
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competent jurisdiction seeking (i) relief under the federal bankruptcy laws (as
now or hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or composition
for adjustment of debts, or (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like for any Credit Party or any Material
Subsidiary thereof or for all or any substantial part of their respective
assets, domestic or foreign, and such case or proceeding shall continue without
dismissal or stay for a period of sixty (60) consecutive days, or an order
granting the relief requested in such case or proceeding (including, but not
limited to, an order for relief under such federal bankruptcy laws) shall be
entered.
(k) Enforcement. A creditor or an encumbrance attaches or takes
possession of, or a distress, execution, sequestration or other process is
levied or enforced upon or sued out against, any of the undertakings and assets
of any Credit Party or any Material Subsidiary thereof and (if capable of
discharge) such possession is not terminated or such attachment or process is
not satisfied, removed or discharge within seven (7) days
(l) Similar Events. Any event occurs or any proceeding is taken with
respect to any Credit Party or any Material Subsidiary in any jurisdiction to
which it is subject which has an effect equivalent or similar to any of the
events set forth in Sections 11.1(i), (j) or (k).
(m) Judgment. A judgment or order for the payment of money which causes
the aggregate amount of all such judgments to exceed $5,000,000 in any Fiscal
Year shall be entered against any Credit Party or any Subsidiary thereof by any
court and such judgment or order shall continue without discharge or stay for a
period of thirty (30) days.
(n) Guaranty. At any time after the execution and delivery thereof, the
guaranty given by the Company hereunder or any provision thereof shall cease to
be in full force or effect as to the Company, or the Company or any Person
acting by or on behalf of the Company shall deny or disaffirm the Company's
obligations under such guaranty or the Company shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to such guaranty.
(o) ERISA. An event described in each clause (i), (ii) and (iii) below
shall have occurred: (i) any Pension Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412 of
the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Pension
Plan subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62 , .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Pension Plan within the following thirty (30) days, any
Pension Plan which is subject to Title IV of ERISA shall have had or is likely
to have a trustee appointed to administer such Pension Plan, any Pension Plan
which is subject to Title IV of ERISA is, shall have been or is likely to be
terminated or to be the subject of termination proceedings under ERISA, any
Pension Plan shall have an Unfunded Current Liability, a contribution required
to be made with respect to a Pension Plan or a Foreign Pension Plan has not been
timely made, the
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Credit Parties or any of their Subsidiaries or any ERISA Affiliate has incurred
or is likely to incur any liability to or on account of a Pension Plan under
Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of
ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of a group
health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the
Code) under Section 4980B of the Code, or the Credit Parties or any of their
Subsidiaries has incurred or is likely to incur liabilities pursuant to one or
more employee welfare benefit plans (as defined in Section 3(1) of ERISA) that
provide benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or Pension Plans or Foreign Pension Plans;
(ii) there shall result from any such event or events the imposition of a lien,
the granting of a security interest or a liability or a material risk of such a
lien being imposed, such security interest being granted or such liability being
incurred, and (iii) such lien, security interest or liability, individually,
and/or in the aggregate, has had, or could reasonably be expected to have, a
Material Adverse Effect.
SECTION 11.2 REMEDIES.
Upon the occurrence of an Event of Default, with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Credit
Parties:
(a) Acceleration: Termination of Facilities. Declare the principal of
and interest on the Loans, the Notes and the Reimbursement Obligations at the
time outstanding, and all other amounts owed to the Lenders and to the
Administrative Agent under this Agreement or any of the other Loan Documents
(other than any Hedging Agreement) (including, without limitation, all L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) and all other
Obligations (other than Obligations owing under any Hedging Agreement), to be
forthwith due and payable, whereupon the same shall immediately become due and
payable without presentment, demand, protest or other notice of any kind, all of
which are expressly waived, anything in this Agreement or the other Loan
Documents to the contrary notwithstanding, and terminate the Credit Facility and
any right of the Borrowers to request borrowings or Letters of Credit
thereunder; provided, that upon the occurrence of an Event of Default specified
in Section 11.1(i), (j), (k) or (1) with respect to the Credit Parties, the
Credit Facility shall be automatically terminated and all Obligations (other
than obligations owing under any Hedging Agreement) shall automatically become
due and payable.
(b) Letters of Credit. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, require the Borrowers at such
time to deposit or cause to be deposited in a cash collateral account opened by
the Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. Amounts held in such cash collateral
account shall be applied by the Administrative Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay the other Obligations. After all such Letters of
Credit shall have expired or been fully drawn upon, the Reimbursement
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Obligation shall have been satisfied and all other Obligations shall have been
paid in full, the balance, if any, in such cash collateral account shall be
promptly returned to the Borrowers.
(c) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Obligations.
SECTION 11.3 RIGHTS AND REMEDIES CUMULATIVE; NON-WAIVER; ETC.
The enumeration of the rights and remedies of the Administrative Agent
and the Lenders set forth in this Agreement is not intended to be exhaustive and
the exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of the Administrative Agent or any Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between the Credit Parties, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1 APPOINTMENT.
Each of the Lenders hereby irrevocably designates and appoints
NationsBank as Administrative Agent of such Lender under this Agreement and the
other Loan Documents for the term hereof and each such Lender irrevocably
authorizes NationsBank as Administrative Agent for such Lender, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and such
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement or such other Loan Documents, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein and
therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or the other Loan Documents or otherwise exist
against the Administrative Agent. Any reference to the Administrative Agent in
this Article XII shall be deemed to refer to the Administrative Agent solely in
its capacity as Administrative Agent and not in its capacity as a Lender.
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SECTION 12.2 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its respective duties under
this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by the Administrative Agent with reasonable care.
SECTION 12.3 EXCULPATORY PROVISIONS.
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact, Subsidiaries or Affiliates shall be (a)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Agreement or the other Loan Documents (except
for actions occasioned solely by its or such Person's own gross negligence or
willful misconduct), or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any Credit Party
or any of its Subsidiaries or any officer thereof contained in this Agreement or
the other Loan Documents or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or the other Loan Documents or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or the other Loan Documents or for any failure of any Credit
Party or any of its Subsidiaries to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of any Credit Party or any of its Subsidiaries.
SECTION 12.4 RELIANCE BY THE ADMINISTRATIVE AGENT.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Credit Parties), independent accountants and other
experts selected by the Administrative Agent. The Administrative Agent may deem
and treat the payee of any Note as the owner thereof for all purposes unless
such Note shall have been transferred in accordance with Section 13.10 hereof.
The Administrative Agent shall be fully justified in failing or refusing to take
any action under this Agreement and the other Loan Documents unless it shall
first receive such advice or concurrence of the Required Lenders (or, when
expressly required hereby or by the relevant other Loan Document, all the
Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action
except for its own gross negligence or willful misconduct. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the Notes in accordance with a request of the
Required Lenders (or, when expressly required hereby,
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all the Lenders), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Notes.
SECTION 12.5 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless it
has received notice from a Lender or the Credit Parties referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default." In the event that the Administrative Agent
receives such a notice, it shall promptly give notice thereof to the Lenders.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders;
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders, except to the extent that other provisions of this Agreement expressly
require that any such action be taken or not be taken only with the consent and
authorization or the request of the Lenders or Required Lenders, as applicable.
SECTION 12.6 NON-RELIANCE ON THE ADMINISTRATIVE AGENT AND OTHER
LENDERS.
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of the Credit Parties or any of their
respective Subsidiaries, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Credit Parties and their respective
Subsidiaries and made its own decision to make its Loans and issue or
participate in Letters of Credit hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Credit Parties and
their respective Subsidiaries. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder or by the other Loan Documents, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, financial and other
condition or creditworthiness of any Credit Party or any of its Subsidiaries
which may come into the possession of the Administrative Agent or any of its
respective officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates.
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SECTION 12.7 INDEMNIFICATION.
The Lenders agree to indemnify the Administrative Agent in its capacity
as such and (to the extent not reimbursed by the Credit Parties and without
limiting the obligation of the Credit Parties to do so), ratably according to
the respective amounts of their Aggregate Revolving Credit Commitment
Percentages from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Notes or any Reimbursement Obligation) be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or the other Loan Documents, or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent they result from the
Administrative Agent's bad faith, gross negligence or willful misconduct. The
agreements in this Section 12.7 shall survive the payment of the Notes, any
Reimbursement Obligation and all other amounts payable hereunder and the
termination of this Agreement.
SECTION 12.8 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The Administrative Agent and its respective Subsidiaries and Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Credit Parties as though the Administrative Agent were not an
Administrative Agent hereunder. With respect to any Loans made or renewed by it
and any Note issued to it and with respect to any Letter of Credit issued by it
or participated in by it, the Administrative Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Administrative Agent, and the
terms "Lender" and "Lenders" shall include the Administrative Agent in its
individual capacity.
SECTION 12.9 RESIGNATION OF THE ADMINISTRATIVE AGENT; SUCCESSOR
ADMINISTRATIVE AGENT.
Subject to the appointment and acceptance of a successor as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Credit Parties. Upon any such resignation, the Required
Lenders shall have the right, subject to the approval of the Credit Parties (so
long as no Default or Event of Default has occurred and is continuing), to
appoint a successor Administrative Agent, which successor shall have minimum
capital and surplus of at least $500,000,000. If no successor Administrative
Agent shall have been so appointed by the Required Lenders, been approved (so
long as no Default or Event of Default has occurred and is continuing) by the
Credit Parties or have accepted such appointment within thirty (30) days after
the Administrative Agent's giving of notice of resignation, then the
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent reasonably acceptable to the Credit Parties (so long as no
Default or Event of Default has occurred and is continuing), which successor
shall have minimum capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a
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successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Section 12.9 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
SECTION 12.10 CO-AGENTS.
No Co-Agent, in its capacity as a co-agent hereunder, shall have any
duty or responsibility under this Agreement or any other Loan Document.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 NOTICES.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
If to the Company or any Designated Borrower:
Xxxxxx Xxxxxx, Inc.
MS 0110
000 Xxxx Xxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx Xx.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to NationsBank as Administrative Agent:
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NationsBank, N.A.,
as Administrative Agent
000 Xxxxx Xxxxx Xxxxxx
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to:
Bank of America
Business Services Group
000 Xxxxx Xxxxx Xxxxxx
Bank of America Center, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to any Lender:
To the Address set forth on Schedule 13.1 hereto
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Company and the Lenders, as the Administrative Agent's Office referred to
herein, to which payments due are to be made and at which Loans will be
disbursed.
SECTION 13.2 EXPENSES, INDEMNITY.
The Borrowers agree to (a) pay all reasonable out-of-pocket expenses of
the Administrative Agent in connection with (i) the preparation, execution and
delivery of this Agreement and each other Loan Document, whenever the same shall
be executed and delivered, including without limitation the reasonable
out-of-pocket syndication and due diligence expenses and reasonable fees and
disbursements of counsel for the Administrative Agent and (ii) the preparation,
execution and delivery of any waiver, amendment or consent by the Administrative
Agent, the Arranger or the Lenders relating to this Agreement or any other Loan
Document, including without limitation reasonable fees and disbursements of
counsel for the Administrative Agent, (b) pay all reasonable out-of-pocket
expenses of the Administrative Agent actually incurred in connection with the
administration of the Credit Facility, (c) pay all reasonable out-of-pocket
expenses of the Administrative Agent, the Arranger and each Lender actually
incurred in connection with the enforcement of any rights and remedies of the
Administrative Agent, the Arranger and the Lenders under the Credit Facility,
including, to the extent reasonable under the
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circumstances, consulting with accountants, attorneys and other Persons
concerning the nature, scope or value of any right or remedy of the
Administrative Agent, the Arranger or any Lender hereunder or under any other
Loan Document or any factual matters in connection therewith, which expenses
shall include without limitation the reasonable fees and disbursements of such
Persons, and (d) defend, indemnify and hold harmless the Administrative Agent,
the Arranger and the Lenders, and their respective parents, Subsidiaries,
Affiliates, employees, agents, officers and directors, from and against any
losses, penalties, fines, liabilities, settlements, damages, costs and expenses,
suffered by any such Person in connection with any claim, investigation,
litigation or other proceeding (whether or not the Administrative Agent, the
Arranger or any Lender is a party thereto) and the prosecution and defense
thereof, arising out of or in any way connected with this Agreement, the Credit
Facility, any other Loan Document, the Loans or the Notes or as a result of the
breach of any of the Credit Parties' obligations hereunder, including without
limitation reasonable attorney's fees (including the allocated cost of internal
counsel), consultant's fees and settlement costs (but excluding any losses,
penalties, fines liabilities, settlements, damages, costs and expenses to the
extent incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified (as finally determined by a court of competent
jurisdiction)).
SECTION 13.3 SET-OFF.
In addition to any rights now or hereafter granted under Applicable Law
and not by way of limitation of any such rights, upon and after the occurrence
of any Event of Default and during the continuance thereof, the Lenders and any
assignee or participant of a Lender in accordance with Section 13.10 are hereby
authorized by the Credit Parties at any time or from time to time, without
notice to the Credit Parties or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and to apply (including,
without limitation, the right to combine currencies) any and all deposits
(general or special, time or demand, including, but not limited to, indebtedness
evidenced by certificates of deposit, whether matured or unmatured) and any
other indebtedness at any time held or owing by the Lenders, or any such
assignee or participant to or for the credit or the accounts of the respective
Borrowers against and on account of the Obligations irrespective of whether or
not (a) the Lenders shall have made any demand under this Agreement or any of
the other Loan Documents or (b) the Administrative Agent shall have declared any
or all of the Obligations to be due and payable as permitted by Section 11.2 and
although such Obligations shall be contingent or unmatured.
SECTION 13.4 GOVERNING LAW.
This Agreement, the Notes and the other Loan Documents, unless
otherwise expressly set forth therein, shall be governed by, construed and
enforced in accordance with the laws of the State of Michigan, without giving
effect to the conflict of law principles thereof.
SECTION 13.5 CONSENT TO JURISDICTION.
Each of the parties hereto hereby irrevocably consents to the personal
jurisdiction of the state and federal courts located in Michigan, in any action,
claim or other proceeding arising out of any dispute in connection with this
Agreement, the Notes and the other Loan Documents, any
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rights or obligations hereunder or thereunder, or the performance of such rights
and obligations. Each of the parties hereto hereby irrevocably consents to the
service of a summons and complaint and other process in any action, claim or
proceeding brought by any other party hereto in connection with this Agreement,
the Notes or the other Loan Documents, any rights or obligations hereunder or
thereunder, or the performance of such rights and obligations, on behalf of
itself or its property, in the manner specified in Section 13.1. Each Designated
Borrower hereby appoints the Company as its agent in the United States for
service of process. Nothing in this Section 13.5 shall affect the right of any
of the parties hereto to serve legal process in any other manner permitted by
Applicable Law or affect the right of any of the parties hereto to bring any
action or proceeding against any other party hereto or its properties in the
courts of any other jurisdictions.
SECTION 13.6 WAIVER OF JURY TRIAL.
THE ADMINISTRATIVE AGENT, EACH LENDER AND EACH CREDIT PARTY HEREBY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF
ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR THE OTHER LOAN
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE
OF SUCH RIGHTS AND OBLIGATIONS.
SECTION 13.7 REVERSAL OF PAYMENTS.
To the extent any Credit Party makes a payment or payments to the
Administrative Agent for the ratable benefit of the Lenders or the
Administrative Agent receives any payment or proceeds of the collateral which
payments or proceeds or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, state or federal
law, common law or equitable cause, then, to the extent of such payment or
proceeds repaid, the Obligations or part thereof intended to be satisfied shall
be revived and continued in full force and effect as if such payment or proceeds
had not been received by the Administrative Agent.
SECTION 13.8 JUDGMENT CURRENCY.
If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or under any other Loan Document in one
currency into another currency, the rate of exchange used shall be that at which
in accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of any Credit
Party in respect of any such sum due from it to the Administrative Agent or any
Lender hereunder or under the other Loan Documents shall, notwithstanding any
judgment in a currency (the "Judgment Currency") other than that in which such
sum is denominated in accordance with the applicable provisions of this
Agreement (the "Agreement Currency"), be discharged only to the extent that on
the Business Day following receipt by the Administrative Agent or such Lender of
any sum adjudged to be so due in the Judgment Currency, the Administrative Agent
or such
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Lender may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency. If the amount of the Agreement Currency so
purchased is less than the sum originally due to the Administrative Agent or
such Lender in the Agreement Currency, the Borrowers, as a separate obligation
and notwithstanding any such judgment, to indemnify the Administrative Agent or
such Lender or the Person to whom such obligation was owing against such loss.
If the amount of the Agreement Currency so purchased is greater than the sum
originally due to the Administrative Agent or such Lender in such currency, the
Administrative Agent or such Lender agrees to return the amount of any excess to
the Borrowers (or to any other Person who may be entitled thereto under
applicable law).
SECTION 13.9 ACCOUNTING MATTERS.
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time, provided that, if the Credit Parties notify the
Administrative Agent that the Credit Parties request an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision
(or if the Administrative Agent notifies the Credit Parties 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 there of, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance therewith.
SECTION 13.10 SUCCESSORS AND ASSIGNS; PARTICIPATIONS;
CONFIDENTIALITY.
(a) Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of the Credit Parties, the Administrative Agent, the
Arranger and the Lenders, all future holders of the Notes, and their respective
successors and permitted assigns, except that the Credit Parties shall not
assign or transfer any of their rights or obligations under this Agreement
without the prior written consent of each Lender other than pursuant to Section
9.3.
(b) Assignment by Lenders. Each Lender may, with the consent of the
Borrowers (so long as no Default or Event of Default has occurred and is
continuing or, if a Default or Event of Default has occurred and is continuing,
without the consent of the Borrowers) and the consent of the Administrative
Agent, which consents shall not be unreasonably withheld, assign to one or more
Eligible Assignees all or a portion of its interests, rights and obligations
under this Agreement (including, without limitation, all or a portion of the
Extensions of Credit at the time owing to it and the Notes held by it) provided
that:
(i) each such assignment shall be of a constant, and not a varying,
percentage of all the assigning Lender's Aggregate Revolving Credit
Commitment and all other rights and obligations under this Agreement;
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(ii) if less than all of the assigning Lender's Aggregate
Revolving Credit Commitment or Loans is to be assigned, the Aggregate
Revolving Credit Commitment or Loans so assigned shall not be less than
$10,000,000;
(iii) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance in the form of Exhibit H
attached hereto (an "Assignment and Acceptance");
(iv) such assignment shall not, without the consent of the Company,
on behalf of itself and the other Credit Parties, require any Borrower,
or any Credit Party, to file a registration statement with the
Securities and Exchange Commission or apply to or qualify the Loans or
the Notes under the blue sky laws of any state;
(v) the assigning Lender shall pay to the Administrative Agent an
assignment fee of $3,500 upon the execution by such Lender of the
Assignment and Acceptance (including, but not limited to, an assignment
by a Lender to another Lender); provided that no such fee shall be
payable upon any assignment by a Lender to an Affiliate thereof; and
(vi) no consents will be required for assignments where the
Eligible Assignee is an Affiliate of the assigning Lender.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least ten (10) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned in such Assignment and Acceptance, have the rights and obligations of a
Lender hereby and (B) the Lender thereunder shall, to the extent of the interest
assigned in such assignment, be released from its obligations under this
Agreement.
(c) Rights and Duties Upon Assignment. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
set forth in such Assignment and Acceptance.
(d) Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amount of the Extensions of
Credit with respect to each Lender from time to time (the "Register"). No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrowers, the Administrative Agent, the Arranger and the Lenders may treat each
person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrowers or Lenders at any reasonable time and from time to time upon
reasonable prior notice.
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(e) Issuance of New Notes, Etc. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Eligible Assignee, together
with any Note or Notes of such assigning Lender if such Lender is assigning all
of its interests hereunder, and any required written consent to such assignment,
the Administrative Agent shall, if such Assignment and Acceptance has been
completed and is substantially in the form of Exhibit H:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the Register;
(iii) give prompt notice thereof to the Lenders and the
Borrowers, on behalf of itself and the other Credit Parties; and
(iv) promptly deliver a copy of such Assignment and Acceptance
to the Borrower.
Within ten (10) Business Days after receipt of notice, each Borrower shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Note or Notes (if required pursuant to this Section), a new Note to the order of
such Eligible Assignee (if it is not already a Lender). Such new Note or Notes
shall be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of the original Note or Notes delivered
to the assigning Lender. Each surrendered Note or Notes shall be canceled and
returned to the Borrower which made such Note.
(f) Participations. Each Lender may sell participations to one or more
banks or other entities in all or a portion of its rights and/or obligations
under this Agreement (including, without limitation, all or a portion of its
Extensions of Credit and the Notes held by it); provided that:
(i) each such participation shall be in an amount not less
than $10,000,000;
(ii) such Lender's obligations under this Agreement (including,
without limitation, its Aggregate Revolving Credit Commitment) shall remain
unchanged;
(iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(iv) the Credit Parties, the Administrative Agent, the Arranger
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;
(v) such Lender shall not permit such participant the right to
approve any waivers, amendments or other modifications to this Agreement or any
other Loan Document other than waivers, amendments or modifications which would
reduce the principal of or the interest rate on any Loan or Reimbursement
Obligation, extend the term or increase the amount of the Aggregate Revolving
Credit Commitment, reduce the
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amount of any fees to which such participant is entitled, extend any scheduled
payment date for principal, interest or fees of any Loan, or release the Company
from its guaranty hereunder, except as expressly contemplated hereby or thereby;
and
(vi) any such disposition shall not, without the consent of the
Company, on behalf of itself and the other Credit Parties, require the Borrowers
or any other Credit Party, to (A) file a registration statement with the
Securities and Exchange Commission or apply to or qualify the Revolving Credit
Loans or the Revolving Credit Notes under the blue sky law of any state or (B)
have additional compensation requirements pursuant to Sections 4.8, 4.10 or
4.11.
(g) Disclosure of Information; Confidentiality. Each of the
Administrative Agent, the Issuing Lender and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to 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 substantially the
same as those of this Section, to any assignee of or participant in, or any
prospective assignee of or participant in, any of its rights or obligations
under this Agreement, (g) with the prior written consent of the Credit Parties,
(h) to the extent such Information (A) becomes publicly available other than as
a result of a breach of this Section by the disclosing party or (B) becomes
available to the Administrative Agent, the Issuing Lender or any Lender on a
nonconfidential basis from a source other than the Credit Parties or (i) to Gold
Sheets and other similar bank trade publications, such information to consist of
deal terms and other information (customarily found in such publications) upon
the Credit Parties' prior review and approval, which shall not be unreasonably
withheld or delayed. For the purposes of this Section, "Information" means all
information received from the Credit Parties or any of their Subsidiaries
relating to the Credit Parties or their business, other than any such
information that is available to the Administrative Agent, the Issuing Lender or
any Lender on a nonconfidential basis prior to disclosure by the Credit Parties;
provided that, in the case of information received from the Credit Parties after
the Closing Date (other than certificates or other information specifically
required by the terms of this Agreement), 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.
(h) Certain Pledges or Assignments. Nothing herein shall prohibit any
Lender from pledging or assigning any Note to any Federal Reserve Bank in
accordance with Applicable Law.
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SECTION 13.11 AMENDMENTS, WAIVERS AND CONSENTS.
Except as set forth below, any term, covenant, agreement or condition
of this Agreement or any of the other Loan Documents may be amended or waived by
the Lenders and any consent may be given by the Lenders, if, but only if, such
amendment, waiver or consent is in writing signed by the Required Lenders (or by
the Administrative Agent with the consent of the Required Lenders) and delivered
to the Administrative Agent and, in the case of an amendment, signed by the
Credit Parties; provided, that no amendment, waiver or consent shall, without
the consent of each Lender affected thereby, (a) increase the amount or extend
the time of the obligation of the Lenders to make Loans or issue or participate
in Letters of Credit (except as expressly contemplated by Section 2.7 or Section
2.8), (b) extend the originally scheduled time or times of payment of the
principal of any Loan or Reimbursement Obligation or the time or times of
payment of interest or fees on any Loan or Reimbursement Obligation, (c) reduce
the rate of interest or fees payable on any Loan or Reimbursement Obligation,
(d) reduce the principal amount of any Loan or Reimbursement Obligation, (e)
permit any subordination of the principal or interest on any Loan or
Reimbursement Obligation, (f) permit any assignment (other than as specifically
permitted or contemplated in this Agreement) of any of the Credit Parties'
rights and obligations hereunder, (g) release the Company from its guaranty
hereunder or (h) amend the provisions of this Section 13.11 or the definition of
Required Lenders. In addition, no amendment, waiver or consent to the provisions
of (i) Article XII shall be made without the written consent of the
Administrative Agent and (ii) Article III shall be made without the written
consent of each Issuing Lender.
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (x) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Federal Bankruptcy Code (as now or hereafter in effect)
supersedes the unanimous consent provisions set forth herein and (y) the
Required Lenders may consent to allow a Credit Party to use cash collateral in
the context of a bankruptcy or insolvency proceeding.
SECTION 13.12 PERFORMANCE OF DUTIES.
The Credit Parties' obligations under this Agreement and each of the
Loan Documents shall be performed by the Credit Parties at their sole cost and
expense.
SECTION 13.13 ALL POWERS COUPLED WITH INTEREST.
All powers of attorney and other authorizations granted to the Lenders,
the Administrative Agent and any Persons designated by the Administrative Agent
or any Lender pursuant to any provisions of this Agreement or any of the other
Loan Documents shall be deemed coupled with an interest and shall be irrevocable
so long as any of the Obligations remain unpaid or unsatisfied or the Credit
Facility has not been terminated.
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SECTION 13.14 SEVERAL OBLIGATIONS OF THE BORROWERS.
The obligations of the Borrowers, as Borrowers, are several and not
joint obligations of each of the Borrowers.
SECTION 13.15 SUBORDINATION OF COMPANY'S CLAIMS AGAINST THE
DESIGNATED BORROWERS.
The Credit Parties hereby agree that any claims of the Company against
a Designated Borrower or any rights the Company has to be indemnified by a
Designated Borrower shall be subordinate in right of payment to the payment and
satisfaction in full of the Obligations to the Administrative Agent and the
Lenders under this Agreement and the other Loan Documents.
SECTION 13.16 SURVIVAL OF INDEMNITIES.
Notwithstanding any termination of this Agreement, the indemnities to
which the Administrative Agent, the Arranger and the Lenders are entitled under
the provisions of this Article XIII and any other provision of this Agreement
and the Loan Documents shall continue in full force and effect and shall protect
the Administrative Agent, the Arranger and the Lenders against events arising
after such termination as well as before, including after the Borrowers'
acceptance of the Lenders' commitments for the Credit Facility, notwithstanding
any failure of such facility to close.
SECTION 13.17 TITLES AND CAPTIONS.
Titles and captions of Articles, Sections and subsections in this
Agreement are for convenience only, and neither limit nor amplify the provisions
of this Agreement.
SECTION 13.18 SEVERABILITY OF PROVISIONS.
Any provision of this Agreement or any other Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or unenforceability
without invalidating the remainder of such provision or the remaining provisions
hereof or thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
SECTION 13.19 COUNTERPARTS.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and shall be binding upon all
parties, their successors and assigns, and all of which taken together shall
constitute one and the same agreement. Delivery of any executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
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SECTION 13.20 TERM OF AGREEMENT.
This Agreement shall remain in effect from the Closing Date through and
including the date upon which all Obligations (other than obligations owing by
any Credit Party to any Lender or Affiliate of a Lender or the Administrative
Agent under any Hedging Agreement) shall have been indefeasibly and irrevocably
paid and satisfied in full. No termination of this Agreement shall affect the
rights and obligations of the parties hereto arising prior to such termination.
SECTION 13.21 INCONSISTENCIES WITH OTHER DOCUMENTS; INDEPENDENT
EFFECT OF COVENANTS.
(a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement shall
control, provided, that in the event there is a conflict or inconsistency
between this Agreement and the letter agreements between the Administrative
Agent and the Company dated as of March 10, 1999 (the "Letter Agreements"),
which conflict or inconsistency relates solely to a matter affecting (i) the
Administrative Agent and/or its Affiliates on one hand and (ii) the Company
and/or the Borrowers on the other, the Letter Agreements shall control.
(b) The Borrowers expressly acknowledge and agree that each covenant
contained in Article VIII and Article IX hereof shall be given independent
effect.
[Signature pages to follow]
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