Exhibit 10.1
EXECUTION COPY
TERM LOAN CREDIT AGREEMENT
Dated as of April 7, 2003
among
UNIVERSAL CORPORATION
as Borrower
THE DOMESTIC SUBSIDIARIES
OF THE BORROWER
FROM TIME TO TIME PARTIES HERETO,
as Guarantors
THE LENDERS NAMED HEREIN
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
AGFIRST FARM CREDIT BANK,
SUNTRUST BANK,
and
ABN AMRO BANK N.V.
as Syndication Agents
ING BANK N.V., LONDON BRANCH
and
DEUTSCHE BANK AG, AMSTERDAM BRANCH
as Documentation Agents
Arranged By:
WACHOVIA SECURITIES, INC.,
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
SECTION 1 DEFINITIONS............................................................................1
1.1 Definitions......................................................................1
1.2 Computation of Time Periods and Dollar Equivalents..............................18
1.3 Accounting Terms................................................................18
SECTION 2 CREDIT FACILITIES.....................................................................18
2.1 [Intentionally Omitted.]........................................................18
2.2 [Intentionally Omitted.]........................................................18
2.3 Term Loan Facility..............................................................18
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES........................................20
3.1 Default Rate....................................................................20
3.2 Extension and Conversion........................................................20
3.3 Prepayments.....................................................................21
3.4 [Intentionally Omitted.]........................................................22
3.5 Administrative Agent's Fees.....................................................22
3.6 LIBOR Reserve Compensation......................................................22
3.7 Capital Adequacy................................................................22
3.8 Unavailability..................................................................23
3.9 Illegality......................................................................23
3.10 Requirements of Law.............................................................24
3.11 Inability To Determine Interest Rate............................................25
3.12 Replacement of Lenders..........................................................25
3.13 Taxes...........................................................................26
3.14 Indemnity.......................................................................28
3.15 Pro Rata Treatment..............................................................28
3.16 Sharing of Payments.............................................................29
3.17 Payments, Computations, Etc.....................................................30
3.18 Obligation of Lenders to Mitigate...............................................32
3.19 Evidence of Debt................................................................32
SECTION 4 CONDITIONS............................................................................33
4.1 Conditions to Closing...........................................................33
4.2 Conditions to the Loan..........................................................35
SECTION 5 REPRESENTATIONS AND WARRANTIES........................................................36
5.1 Financial Condition.............................................................36
5.2 Organization; Existence.........................................................37
5.3 Power; Authorization; Enforceable Obligations...................................37
5.4 Conflict........................................................................37
5.5 No Material Litigation..........................................................37
5.6 No Default......................................................................38
5.7 Taxes...........................................................................38
5.8 ERISA...........................................................................38
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5.9 Governmental Regulations, Etc...................................................39
5.10 Subsidiaries....................................................................40
5.11 Purpose of Term Loan............................................................40
5.12 Compliance with Laws; Contractual Obligations...................................40
5.13 Accuracy and Completeness of Information........................................40
5.14 Environmental Matters...........................................................41
SECTION 6 AFFIRMATIVE COVENANTS.................................................................42
6.1 Financial Statements............................................................42
6.2 Certificates; Other Information.................................................43
6.3 Notices.........................................................................44
6.4 Maintenance of Existence and Compliance with Law................................45
6.5 Maintenance of Property; Insurance..............................................45
6.6 Inspection of Property; Books and Records; Discussions..........................45
6.7 Financial Covenants.............................................................46
6.8 Use of Proceeds.................................................................46
6.9 Additional Subsidiary Guarantors................................................46
6.10 Payment of Obligations..........................................................46
SECTION 7 NEGATIVE COVENANTS....................................................................47
7.1 [Intentionally Omitted.]........................................................47
7.2 Liens...........................................................................47
7.3 Consolidation, Merger, Sale, or Purchase of Assets, Capital Expenditures, etc...47
7.4 Sale Leasebacks.................................................................47
7.5 Sale of Significant Subsidiaries................................................48
7.6 Transactions with Affiliates....................................................48
7.7 Investments.....................................................................48
SECTION 8 EVENTS OF DEFAULT.....................................................................49
8.1 Events of Default...............................................................49
8.2 Acceleration; Remedies..........................................................52
SECTION 9 AGENCY PROVISIONS.....................................................................53
9.1 Appointment.....................................................................53
9.2 Delegation of Duties............................................................53
9.3 Exculpatory Provisions..........................................................53
9.4 Reliance on Communications......................................................54
9.5 Notice of Default...............................................................54
9.6 Non-Reliance on Administrative Agent and Other Lenders..........................55
9.7 Indemnification.................................................................55
9.8 Administrative Agent in its Individual Capacity.................................56
9.9 Successor Administrative Agent..................................................56
SECTION 10 MISCELLANEOUS........................................................................56
10.1 Notices.........................................................................56
10.2 Right of Set-Off................................................................58
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10.3 Benefit of Agreement............................................................58
10.4 No Waiver; Remedies Cumulative..................................................60
10.5 Payment of Expenses, etc........................................................61
10.6 Amendments, Waivers, and Consents...............................................61
10.7 Counterparts....................................................................63
10.8 Headings........................................................................63
10.9 Survival........................................................................63
10.10 Governing Law; Submission to Jurisdiction; Venue................................63
10.11 Severability....................................................................64
10.12 Entirety........................................................................64
10.13 Binding Effect; Termination.....................................................64
10.14 Judgment Currency...............................................................64
SECTION 11 GUARANTY ............................................................................65
11.1 The Guaranty....................................................................65
11.2 Bankruptcy......................................................................66
11.3 Nature of Liability.............................................................66
11.4 Independent Obligation..........................................................66
11.5 Authorization...................................................................67
11.6 Reliance........................................................................67
11.7 Waiver..........................................................................67
11.8 Limitation on Enforcement.......................................................68
11.9 Confirmation of Payment.........................................................68
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SCHEDULES
Schedule 1.1(a) Form of Account Designation Letter
Schedule 1.1(b) Form of Joinder Agreement
Schedule 2.3(a) Schedule of Lenders and Commitments
Schedule 2.3(d) Form of Term Note
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 3.17(b) Place of Payments
Schedule 4.1(e)(v) Secretary's Certificate
Schedule 5.5 Description of Legal Proceedings
Schedule 5.7 Tax Litigation
Schedule 5.10 Subsidiaries
Schedule 5.14 Environmental Matters
Schedule 6.2(b) Form of Officer's Compliance Certificate
Schedule 10.3(b) Form of Assignment and Acceptance
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TERM LOAN CREDIT AGREEMENT
THIS TERM LOAN CREDIT AGREEMENT dated as of April 7, 2003 (the "Credit
Agreement"), is by and among UNIVERSAL CORPORATION, a Virginia corporation (the
"Borrower"), each of those Subsidiaries of the Borrower identified as a
"Guarantor" on the signature pages hereto and such other Subsidiaries of the
Borrower as may from time to time become party hereto (collectively, the
"Guarantors"), the lenders named herein and such other lenders as may become a
party hereto (the "Lenders"), and WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide a $125.0
million term loan credit facility for the purposes hereinafter set forth;
WHEREAS, the Lenders have agreed to make the requested term loan credit
facility available to the Borrower on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Account Designation Letter" shall mean the Notice of Account
Designation Letter, dated the Effective Date, from the Borrower to the
Administrative Agent in substantially the form attached hereto as Schedule
1.1(a).
"Administrative Agent" shall have the meaning assigned to such term in
the heading hereof, together with any successors or assigns.
"Administrative Agent's Fees" shall have the meaning assigned to such
term in Section 3.5(c).
"Administrative Agent's Fee Letter" means that certain letter
agreement, dated as of February 14, 2003, between the Administrative Agent
and the Borrower, as amended, modified, supplemented, or replaced from time
to time.
"Affected Lender" means such term as defined in Section 3.9(a).
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"Affiliate" shall mean as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition, a Person
shall be deemed to be "controlled by" a Person if such Person possesses,
directly or indirectly, power either (a) to vote 10% or more of the
securities having ordinary voting power for the election of directors of
such Person or (b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agency Services Address" means the notice address for the
Administrative Agent set forth in Section 10.1 or such other address as may
be identified by written notice from the Administrative Agent to the
Borrower.
"Applicable Percentage" means for any day, the rate per annum set
forth below opposite the applicable rating for the Borrower's senior
unsecured (non-credit enhanced) long-term debt then in effect, it being
understood that the Applicable Percentage for (i) a Base Rate Loan shall be
the percentage set forth under the column "Base Rate Margin" and (ii) a
LIBOR Loan shall be the percentage set forth under the column "LIBOR
Margin":
Pricing Rating (S&P/ Base Rate LIBOR
Level Xxxxx'x) Margin Margin
--------------------------------------------
I BBB+/Baa1 and
higher 0.000% 1.200%
--------------------------------------------
II BBB/Baa2 0.250% 1.500%
--------------------------------------------
III BBB-/Baa3 0.750% 2.000%
--------------------------------------------
IV Lower than
BBB-/Baa3 1.250% 2.500%
--------------------------------------------
The numerical classification set forth under the column "Pricing Level"
(each a "Pricing Level") shall be established based on the better of
ratings by S&P and Xxxxx'x for the Borrower's senior unsecured (non-credit
enhanced) long-term debt; provided that (i) in the event such ratings are
not more than one (1) Pricing Level apart, the Applicable Percentage shall
be set at the Pricing Level corresponding to the higher of the ratings and
(ii) in the event such ratings are more than one (1) Pricing Level apart,
the Applicable Percentage shall be set at the Pricing Level immediately
above the lower of the ratings by S&P and Xxxxx'x. The Applicable
Percentage shall be determined and adjusted quarterly on the date five (5)
Business Days after the end of each calendar quarter (each a "Rate
Determination Date") based on the debt rating in effect on the last day of
the preceding calendar quarter and shall be effective until the next Rate
Determination Date; provided, that the Applicable Percentage shall be set
at interest rates no lower than those set forth in Pricing Level I until
the first Rate Determination Date to occur after the end of the first two
full fiscal quarters following the Effective Date. Adjustments in the
Applicable Percentage shall be effective as to the Loan from the date of
adjustment. The Administrative Agent shall promptly notify the Lenders of
changes in the Applicable Percentage.
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"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded, or replaced from time to
time.
"Bankruptcy Event" means, with respect to any Person, the occurrence
of any of the following with respect to such Person: (i) a court or
governmental agency having jurisdiction in the premises shall (A) enter a
decree or order for relief in respect of such Person in an involuntary case
under any applicable bankruptcy, insolvency, or other similar law now or
hereafter in effect, or (B) appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator, or similar official of such Person or for
any substantial part of its Property, or (C) order the winding up or
liquidation of its affairs; (ii) there shall be commenced against such
Person (A) an involuntary case under any applicable bankruptcy, insolvency,
or other similar law now or hereafter in effect, or (B) any case,
proceeding, or other action for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator, or similar official of such
Person or for any substantial part of its Property, or for the winding up
or liquidation of its affairs, and such involuntary case or other case,
proceeding, or other action shall remain undismissed, undischarged, or
unbonded for a period of sixty (60) consecutive days; or (iii) (A) such
Person shall (w) commence a voluntary case under any applicable bankruptcy,
insolvency, or other similar law now or hereafter in effect, (x) consent to
the entry of an order for relief in an involuntary case under any such law,
(y) consent to the appointment or taking possession, by a receiver,
liquidator, assignee, custodian, trustee, sequestrator, or similar official
of such Person or any substantial part of its Property, or (z) make any
general assignment for the benefit of creditors, or (B) the board of
directors of such Person shall authorize such Person to take any of the
actions set forth in subsection (A); or (iv) such Person shall be unable
to, or shall admit in writing its inability to, pay its debts generally as
they become due.
"Base Rate" means, for any day, the rate per annum (rounded upwards,
if necessary, to the nearest whole multiple of 1/100 of 1%) equal to the
greater of (a) the Federal Funds Rate in effect on such day plus 1/2 of 1%
or (b) the Prime Rate in effect on such day. If for any reason the
Administrative Agent shall have reasonably determined (which determination
shall be conclusive absent manifest error) that it is unable after due
inquiry to ascertain the Federal Funds Rate for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms hereof, the Base Rate shall be
determined without regard to clause (a) of the first sentence of this
definition until the circumstances giving rise to such inability no longer
exist. Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the effective date of such change
in the Prime Rate or the Federal Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate determined
by reference to the Base Rate.
"Borrower" means Universal Corporation, a Virginia corporation, as
referenced in the opening paragraph, its successors, and permitted assigns.
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"Business Day" means any day, other than a Saturday, Sunday, or legal
holiday, on which commercial banks are open for business in Charlotte,
North Carolina, Richmond, Virginia, New York, New York, and London,
England.
"Capital Lease" means, as applied to any Person, any lease of any
Property (whether real, personal, or mixed) by that Person as lessee that,
in accordance with GAAP, is or should be accounted for as a capital lease
on the balance sheet of that Person.
"Capital Stock" means (i) in the case of a corporation, capital stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights, or other equivalents (however
designated) of capital stock, (iii) in the case of a partnership,
partnership interests (whether general or limited), (iv) in the case of a
limited liability company, membership interests, and (v) any other interest
or participation that confers on a Person the right to receive a share of
the profits and losses of, or distribution of assets of, the issuing
Person.
"Change of Control" shall mean (a) any Person or two or more Persons
acting in concert shall have acquired "beneficial ownership," directly or
indirectly, of, or shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon consummation, will
result in its or their acquisition of, or control over, Voting Stock of the
Borrower (or other securities convertible into such Voting Stock)
representing 20% or more of the combined voting power of all Voting Stock
of the Borrower, or (b) during any period of up to 18 consecutive months,
commencing after the Effective Date, individuals who at the beginning of
such 18 month period were directors of the Borrower (together with any new
director whose election by the Borrower's Board of Directors or whose
nomination for election by the Borrower's shareholders was approved by a
vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the directors of the Borrower then in office. As
used herein, "beneficial ownership" shall have the meaning provided in Rule
13d-3 of the Securities and Exchange Commission under the Securities Act of
1934.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time. References
to sections of the Code shall be construed also to refer to any successor
sections.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make its portion of the Term Loan in a principal amount
equal to such Lender's Commitment Percentage of the Committed Amount (and
for purposes of making determinations of Required Lenders hereunder after
the Effective Date, the principal amount outstanding on the Term Loan).
"Commitment Percentage" means, with respect to any Lender, the
percentage identified as its Commitment Percentage on Schedule 2.3(a), as
such percentage may be
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modified in connection with any assignment made in accordance with the
provisions of Section 10.3.
"Commitment Period" means the period from and including the Effective
Date to but not including the earlier of (i) the Termination Date, or (ii)
the date on which the Commitments terminate in accordance with the
provisions of this Credit Agreement.
"Committed Amount" shall have the meaning set forth in Section 2.3(a).
"Committed Inventory" means tobacco inventories for which the Borrower
has received a Confirmed Order.
"Confirmed Order" means an order by a customer not an Affiliate of the
Borrower that has been accepted in the ordinary course of business by
representatives of the Borrower or an Affiliate of the Borrower and
recorded on the inventory records of such Affiliate or the Borrower.
"Consolidated Accumulated Other Comprehensive Income" means, for the
Consolidated Group, at any time, the accumulated change in shareholders'
equity of the Borrower caused by the recognition of other comprehensive
income as defined in accordance with GAAP applied on a consistent basis.
"Consolidated Average Cash on Hand" means the quotient obtained by
dividing (i) the sum of the total cash on hand of the Consolidated Group as
of the end of the preceding four fiscal quarters by (ii) four (4).
"Consolidated Average Total Indebtedness" means the quotient obtained
by dividing (i) the sum of the total Indebtedness (excluding the aggregate
undrawn amount of all standby letters of credit and bankers' acceptances)
of the Consolidated Group as of the end of the preceding four fiscal
quarters by (ii) four (4).
"Consolidated EBITDA" means, for any fiscal period of the Borrower,
the sum of (i) Consolidated Net Income for such period, plus (ii) the
aggregate amount of the depreciation expense and amortization expense for
such period to the extent deducted in determining Consolidated Net Income,
plus (iii) the income tax expense for such period deducted in determining
Consolidated Net Income, plus (iv) the interest expense for such period
(including, without limitation, the interest component of payments under
Capital Leases) deducted in determining Consolidated Net Income, minus (v)
any extraordinary items of gain included in Consolidated Net Income for
such period, in each case determined for the Borrower and its consolidated
subsidiaries on a consolidated basis in accordance with GAAP.
"Consolidated Funded Debt" means Funded Debt of the Consolidated Group
determined on a consolidated basis in accordance with GAAP applied on a
consistent basis.
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"Consolidated Group" means the Borrower and its consolidated
subsidiaries as determined in accordance with GAAP.
"Consolidated Leverage Ratio" means, as of the last day of any fiscal
quarter, the ratio of Consolidated Funded Debt to Consolidated Total
Capitalization.
"Consolidated Net Income" means for any period for the Consolidated
Group, net income on a consolidated basis determined in accordance with
GAAP applied on a consistent basis.
"Consolidated Tangible Net Worth" means, for the Consolidated Group at
any time, Consolidated Total Tangible Assets minus Consolidated Total
Liabilities plus the Consolidated Accumulated Other Comprehensive Income
that results in a reduction to shareholders' equity, if any, and minus the
Consolidated Accumulated Other Comprehensive Income that results in an
increase to shareholders' equity, if any, as determined on a consolidated
basis in accordance with GAAP applied on a consistent basis.
"Consolidated Total Capitalization" means, for the Consolidated Group
at any time, the sum of Consolidated Funded Debt plus consolidated
shareholders' equity, as determined in accordance with GAAP applied on a
consistent basis, excluding the effect of Consolidated Accumulated Other
Comprehensive Income.
"Consolidated Total Liabilities" means for the Consolidated Group at
any time, total liabilities determined on a consolidated basis in
accordance with GAAP applied on a consistent basis.
"Consolidated Total Tangible Assets" means, for the Consolidated Group
at any time, consolidated total assets minus (i) goodwill and (ii) other
items properly classified as "intangible assets", in each case as
determined on a consolidated basis in accordance with GAAP applied on a
consistent basis.
"Consolidated Working Capital" means, for the Consolidated Group at
any time, consolidated current assets minus consolidated current
liabilities, in each case as determined on a consolidated basis in
accordance with GAAP applied on a consistent basis.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, any Joinder Agreement, the Administrative Agent's Fee
Letter, and all other related agreements and documents issued or delivered
hereunder or thereunder or pursuant hereto or thereto.
"Credit Party" means any of the Borrower or the Guarantors.
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"Customer Advances and Deposits" means funds received by the Borrower
from customers that are recorded as "Customer Advances and Deposits" on the
Borrower's financial statements.
"Default" means any event, act, or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, at such time,
(i) has failed to make a Loan required pursuant to the terms of this Credit
Agreement, (ii) has failed to pay to the Administrative Agent or any Lender
an amount owed by such Lender pursuant to the terms of the Credit Agreement
or any other of the Credit Documents, or (iii) has been deemed insolvent or
has become subject to a bankruptcy or insolvency proceeding or to a
receiver, trustee or similar proceeding.
"Determination Date" means with respect to any Loan:
(a) in connection with the origination of any new Loan advance, the
Business Day that is the earliest of the date such credit is extended, or
the date the rate is set, as applicable;
(b) in connection with any extension or conversion or continuation of
an existing Loan, the last Business Day of each month or the Business Day
that is the earlier of the date such advance is extended, converted, or
continued, or the date the rate is set, as applicable, in connection with
any extension, conversion, or continuation; in addition to the foregoing,
such additional dates not more frequently than once a month as may be
determined by the Administrative Agent.
"Dollar Amount" means with respect to Dollars or an amount denominated
in Dollars, such amount.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
"Effective Date" means the date hereof.
"Environmental Laws" shall mean any and all applicable foreign,
federal, state, local, or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, requirements, or any Governmental
Authority, or other Requirement of Law (including common law) regulating,
relating to, or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any time be
in effect during the term of this Credit Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
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"ERISA Affiliate" means an entity, whether or not incorporated, that
is under common control with the Borrower within the meaning of Section
4001(a)(14) of ERISA, or is a member of a group that includes the Borrower
and that is treated as a single employer under Sections 414(b) or (c) of
the Code.
"ERISA Event" means (i) with respect to any Single Employer Plan or
Multiple Employer Plan, the occurrence of a Reportable Event; (ii) the
withdrawal by the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it was
a substantial employer (as such term is defined in Section 4001(a)(2) of
ERISA), or the termination of a Multiple Employer Plan; (iii) the
distribution of a notice of intent to terminate or the actual termination
of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (iv) the
institution of proceedings to terminate or the actual termination of a Plan
by the PBGC under Section 4042 of ERISA; (v) any event or condition that
could reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan; (vi) the complete or partial withdrawal of the
Borrower, any Subsidiary of the Borrower, or any ERISA Affiliate from a
Multiemployer Plan or the receipt by the Borrower, any Subsidiary, or any
ERISA Affiliate that a Multiemployer Plan is in reorganization; (vii) the
conditions for imposition of a lien under Section 302(f) of ERISA exist
with respect to any Plan; or (vii) the adoption of an amendment to any Plan
requiring the provision of security to such Plan pursuant to Section 307 of
ERISA.
"Event of Default" means such term as defined in Section 8.1.
"Existing Credit Agreements" means (a) that certain Two-Year Credit
Agreement dated as of April 11, 2002 by and among the Borrower, the
Guarantors identified therein, the Lenders identified therein, and Wachovia
Bank, National Association, as Administrative Agent, as amended, and (b)
that certain 364-Day Credit Agreement dated as of April 11, 2002 by and
among the Borrower, the Guarantors identified therein, the Lenders
identified therein, and Wachovia Bank, National Association, as
Administrative Agent, as amended.
"Fees" means all fees payable pursuant to Section 3.5.
"Federal Funds Rate" means, for any day, the rate of interest per
annum (rounded upwards, if necessary, to the nearest whole multiple of
1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day;
provided that (A) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day and (B) if no such rate is so published on such next preceding
Business Day, the Federal Funds Rate for such day shall be the average rate
quoted to the Administrative Agent on such day on such transactions as
reasonably determined by the Administrative Agent.
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"Funding Date" means April 10, 2003.
"Funded Debt" means, with respect to any Person, without duplication,
(i) all Indebtedness of such Person for borrowed money having a maturity at
the time of determination of more than one (1) year or that is renewable or
extendible at the option of the Borrower for a period of more than one (1)
year from the date of determination, (ii) all obligations of such Person
evidenced by bonds, debentures, notes, or similar instruments, or upon
which interest payments are customarily made having a maturity at the time
of determination of more than one (1) year or that is renewable or
extendible at the option of the Borrower for a period of more than one (1)
year from the date of determination, (iii) all purchase money Indebtedness
(including for purposes hereof, indebtedness and obligations described in
clauses (iii) and (iv) of the definition of "Indebtedness") of such Person,
having a maturity at the time of determination of more than one (1) year or
that is renewable or extendible at the option of the Borrower for a period
of more than one (1) year from the date of determination, including without
limitation the principal portion of all obligations of such Person under
Capital Leases having a maturity at the time of determination of more than
one (1) year or that is renewable or extendible at the option of the
Borrower, (iv) all Support Obligations of such Person with respect to
Funded Debt of another Person, (v) the attributed principal amount
outstanding under any securitization transaction with a maturity at the
time of determination of more than one (1) year, and (vi) the principal
balance outstanding under any synthetic lease or tax retention operating
lease with a maturity at the time of determination of more than one (1)
year 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 Funded Debt of such Person
shall include the Funded Debt of any partnership or joint venture in which
such Person is a general partner or joint venturer, but only to the extent
there is recourse to such Person for the payment of such Funded Debt.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to the terms of Section
1.3 hereof.
"Governmental Authority" means any Federal, state, local, or foreign
court or governmental agency, authority, instrumentality, or regulatory
body.
"Guarantors" shall mean (a) any of the Material Domestic Subsidiaries
identified as a "Guarantor" on the signature pages hereto and (b) any
Person that executes a Joinder Agreement, together with their successors
and permitted assigns.
"Guaranty" means the guaranty of the Guarantors set forth in Section
11.
"Hedging Agreements" means, with respect to any Person, any agreement
entered into to protect such Person against fluctuations in interest rates,
or currency or raw materials values, including, without limitation, any
interest rate swap, cap or collar agreement, or similar arrangement between
such Person and one or more counterparties, any foreign currency exchange
agreement, currency protection agreements, commodity
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purchase or option agreements, or other interest or exchange rate or
commodity price hedging agreements.
"Indebtedness" of any Person means, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes, or similar instruments, or
upon which interest payments are customarily made, (iii) 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), (iv) 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 one (1) year of the incurrence
thereof) that would appear as liabilities on a balance sheet of such
Person, (v) all obligations of such Person under take-or-pay or similar
arrangements or under commodities agreements, (vi) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an
existing right, contingent, or otherwise, to be secured by) any Lien on, 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 Indebtedness
shall be limited to the greater of (A) the amount of such Indebtedness as
to which there is recourse to such Person and (B) the fair market value of
the property that is subject to the Lien, (vii) all Support Obligations of
such Person, (viii) the principal portion of all obligations of such Person
under Capital Leases, (ix) the maximum outstanding amount of all standby
letters of credit (excluding performance standby letters of credit) issued
or bankers' acceptances created for the account of such Person and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed), (x)
the outstanding attributed principal amount under any securitization
transaction, and (xi) the principal balance outstanding under any synthetic
lease or tax retention operating lease 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;
excluding, for all purposes hereof, all contingent liabilities from
pre-export financing in Brazil and post-export financing in Zimbabwe, each
in an aggregate outstanding principal amount consistent with past practices
of the Borrower. The Indebtedness of any Person shall include the
Indebtedness 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 Indebtedness.
"Interest Payment Date" means (i) as to any Base Rate Loan, the last
day of each March, June, September, and December, the date of repayment of
principal of such Loan, and the Termination Date and (ii) as to any LIBOR
Loan, the last day of each Interest Period for such Loan, the date of
repayment of principal of such Loan and on the Termination Date, and in
addition where the applicable Interest Period is more than three (3)
months, then also on the date three (3) months from the beginning of the
Interest Period, and each three (3) months thereafter. If an Interest
Payment Date falls on a date that is not a Business Day, such Interest
Payment Date shall be deemed to be the next succeeding Business Day, except
that in the case of a LIBOR Loan where the next
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succeeding Business Day falls in the next succeeding calendar month, then
on the next preceding Business Day.
"Interest Period" means, as to any LIBOR Loan, a period of one, two,
three, or six month's duration, as the Borrower may elect, commencing in
each case, on the date of the borrowing (including conversions, extensions,
and renewals); provided, however, (A) if any Interest Period would end on a
day that is not a Business Day, such Interest Period shall be extended to
the next succeeding Business Day (except that in the case of a LIBOR Loan
where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day), (B) no Interest
Period shall extend beyond the Termination Date, and (C) in the case of a
LIBOR Loan, where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the Interest
Period is to end, such Interest Period shall end on the last day of such
calendar month.
"Investment" means all investments, in cash or by delivery of property
made, directly or indirectly in or to any Person, whether by acquisition of
shares of Capital Stock, property, assets, indebtedness, or other
obligations or securities or by loan advance, capital contribution, or
otherwise.
"Joinder Agreement" means a Joinder Agreement in substantially the
form of Schedule 1.1(b), executed and delivered by each Person required to
become a Guarantor in accordance with the provisions of Section 6.9.
"Lead Arranger" means Wachovia Securities, Inc. in its capacity as
sole lead arranger under this Credit Agreement.
"Lenders" means each of the Persons identified as a "Lender" on the
signature pages hereto, and their successors and assigns.
"LIBOR Loan" means any Loan bearing interest at a rate determined by
reference to the LIBOR Rate.
"LIBOR Rate" means, for any LIBOR 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 3750 (or any successor or
equivalent page) as the London interbank offered rate for deposits in
Dollars, 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. If for any reason such rate is not available, the term
"LIBOR Rate" shall mean, for any LIBOR Loan for any Interest Period
therefor, 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 Dollars, 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 (1) rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates.
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"LIBOR Reserve Percentage" means for any day, that percentage
(expressed as a decimal) that is in effect from time to time under
Regulation D of the Board of Governors of the Federal Reserve System (or
other applicable authority or any successor thereof), as such regulation
may be amended from time to time or any successor regulation, as the
maximum reserve requirement (including, without limitation, any basic,
supplemental, emergency, special, or marginal reserves) applicable with
respect to eurocurrency liabilities as that term is defined in Regulation D
(or against any other category of liabilities that includes deposits by
reference to which the interest rate of a LIBOR Loan is determined),
whether or not a Lender has any eurocurrency liabilities subject to such
reserve requirement at that time. A LIBOR Loan shall be deemed to
constitute eurocurrency liabilities and as such shall be deemed subject to
reserve requirements without benefits of credits for proration, exceptions,
or offsets that may be available from time to time to a Lender. The LIBOR
Rate shall be adjusted automatically on and as of the effective date of any
change in the LIBOR Reserve Percentage.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority, or charge of any kind (including any conditional sale
or other title retention agreement, any financing or similar statement, or
notice filed under the Uniform Commercial Code as adopted and in effect in
the relevant jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).
"Loan" or "Loans" means the Term Loan.
"Material Adverse Effect" means an event or condition that has
resulted (A) in the provision of a loss contingency in the consolidated
financial statements of the Borrower and the notes thereto, (B) in a
reduction in the shareholders' equity determined on a consolidated basis
for the Borrower, or (C) in both such a provision under (A) and a reduction
under (B); provided, however, that, without duplication, such a provision,
reduction, or provision and reduction, net of appropriate taxes, shall be
equal to or greater than twenty percent (20%) of the total shareholders'
equity as shown in the most recent annual financial statements for the
Borrower on a consolidated basis in order to constitute a "Material Adverse
Effect".
"Material Domestic Subsidiary" means any domestic Subsidiary that owns
unencumbered operating assets as of the Effective Date or as of the end of
the most recent fiscal year thereafter in excess of ten percent (10%) of
the Consolidated Total Tangible Assets. In making the foregoing
determination, the percentage ownership interest in a Subsidiary held by
the Borrower or any of its Subsidiaries shall be applied to the value of
unencumbered operating assets held by such Subsidiary and the resulting
value shall be used to determine the percentage of the Consolidated Total
Tangible Assets held by such Subsidiary.
"Materials of Environmental Concern" shall mean any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or
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toxic substances, materials, or wastes, defined or regulated as such in or
under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls, and urea-formaldehyde insulation.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating
securities.
"Multiemployer Plan" means a Plan that is a multiemployer plan as
defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan that the Borrower, any
Subsidiary of the Borrower, or any ERISA Affiliate and at least one (1)
employer other than the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate are contributing sponsors.
"Non-Excluded Taxes" means such term as is defined in Section 3.13.
"Note" or "Notes" means any Term Note or Term Notes, as appropriate.
"Notice of Extension or Conversion" means the written notice of
extension or conversion in substantially the form of Schedule 3.2, as
required by Section 3.2.
"Participation Interest" means the purchase by a Lender of a
participation in the Loan as provided in Section 3.16.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Liens" means:
(1) Liens existing on the Effective Date and securing
indebtedness outstanding on the Effective Date;
(2) Liens securing indebtedness owing by any Subsidiary to the
Borrower, any other Credit Party, or a Significant Subsidiary;
(3) Liens on assets of any Person existing at the time such
Person becomes a Subsidiary;
(4) Liens on assets existing at the time of acquisition thereof;
provided such Lien shall not extend to any other property of the
Borrower, any other Credit Party, or a Significant Subsidiary;
(5) Liens to secure indebtedness incurred or guaranteed by the
Borrower or a Subsidiary to finance the purchase price of land,
buildings or equipment, or improvements to or construction of land,
buildings, or equipment, which indebtedness is incurred or guaranteed
prior to, at the time of, or within 180
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days after such acquisition (or in the case of real property,
completion of such improvement or construction or commencement of full
operation of such property, whichever is later); provided that such
Lien shall extend only to the asset to be acquired or improved with
such financing;
(6) Liens on any assets of a Person existing at the time such
Person is merged into or consolidated with a Credit Party or a
Significant Subsidiary; provided such Lien shall not extend to any
other property of any Credit Party or a Significant Subsidiary;
(7) Liens on any assets in favor of the United States of America
or any State thereof, or in favor of any other country, or political
subdivision thereof and created to secure (a) payments pursuant to any
contract or statute; or (b) any indebtedness incurred or guaranteed by
a Credit Party or any Significant Subsidiary to finance the purchase
price (or in the case of real property, the cost of construction) of
the assets subject to any such Lien (including, but not limited to,
Liens incurred in connection with pollution control, industrial
revenue, or similar finances);
(8) any extension, renewal, or replacement (or successive
extensions, renewals, or replacements) in whole or in part, of any
Lien referred to in the foregoing paragraphs (1) to (7), inclusive;
(9) Liens for property taxes and assessments or governmental
charges or levies and Liens securing claims or demands of mechanics,
suppliers, carriers, landlords, and other like Persons;
(10) Liens incurred or deposits made in the ordinary course of
business (a) in connection with worker's compensation, unemployment
insurance, social security, and other like laws, or (b) to secure the
performance of letters of credit, bids, sales contracts, leases,
statutory obligations, surety, appeal and performance bonds, and other
similar obligations, in each case not incurred in connection with the
borrowing of money, the obtaining of advances, or the payment of the
deferred purchase price of property;
(11) attachment, judgment, and other similar Liens arising in
connection with court proceedings, provided that execution and other
enforcement of such Liens are effectively stayed and all claims that
the Liens secure are being actively contested in good faith and by
appropriate proceedings;
(12) Liens arising in the ordinary course of the business or
incidental to the conduct of such business or the ownership of the
assets of a Credit Party or any Significant Subsidiary which Liens
arise out of transactions involving the sale or purchase of goods or
services and that do not, in the opinion of the Borrower, materially
impair the use of such assets in the operations of the business of the
Credit Parties or such Significant Subsidiary;
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(13) Liens arising out of sale and lease-back transactions not
prohibited by Section 7.4; and
(14) Liens other than those described in clause (1) through (13)
above provided the sum of (a) the aggregate principal amount secured
thereby at any time outstanding and (b) the aggregate amount of sale
and lease-back transactions, measured as provided in Section 7.4 and
consummated after December 31, 2002, does not exceed Fifty Million
Dollars ($50,000,000).
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust, or other
enterprise (whether or not incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3) of
ERISA) that is covered by ERISA and with respect to which the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to be)
an "employer" within the meaning of Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by Wachovia as its prime rate in effect at its principal
office in Charlotte, North Carolina, with each change in the Prime Rate
being effective on the date such change is publicly announced as effective
(it being understood and agreed that the Prime Rate is a reference rate
used by Wachovia in determining interest rates on certain loans and is not
intended to be the lowest rate of interest charged on any extension of
credit by Wachovia to any debtor).
"Property" means any interest in any kind of property or asset,
whether real, personal, or mixed, or tangible or intangible.
"Proposed Lender" means such term as defined in Section 3.12.
"Register" shall have the meaning given such term in Section 10.3(c).
"Regulation T, U, or X" means Regulation T, U, or X, respectively, of
the Board of Governors of the Federal Reserve System as from time to time
in effect and any successor to all or a portion thereof.
"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the notice
requirement has been waived by regulation.
"Requesting Lender" shall have the meaning assigned to such term in
Section 3.12.
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"Required Lenders" means, at any time, Lenders having more than fifty
percent (50%) of the Commitments, or if the Commitments have been
terminated, Lenders having more than fifty percent (50%) of the aggregate
principal Dollar Amount (determined as of the most recent Determination
Date) of the Loan outstanding (taking into account in each case
Participation Interests or obligation to participate therein); provided
that the Commitments of, and outstanding principal Dollar Amount
(determined as of the most recent Determination Date) of the Loan (taking
into account Participation Interests therein) owing to, a Defaulting Lender
shall be excluded for purposes hereof in making a determination of Required
Lenders.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation, or determination of
an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its material property
is subject.
"Responsible Officer" means any of the Chief Financial Officer, the
Controller, any Vice President, and the Treasurer.
"Revolving Administrative Agent" means the Administrative Agent and
referred to and defined in the Revolving Credit Agreement.
"Revolving Credit Agreement" means that certain agreement, dated as of
the date hereof, by and among the Borrower, the Guarantors from time to
time party thereto, the Lenders from time to time party thereto, and the
Administrative Agent.
"Revolving Credit Documents" means the Credit Documents as referred to
and defined in the Revolving Credit Agreement.
"Revolving Lenders" means the Lenders as referred to and defined in
the Revolving Credit Agreement.
"Revolving Loans" means the Loans as referred to and defined in the
Revolving Credit Agreement.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor or assignee of the business of such division
in the business of rating securities.
"Significant Subsidiary" means each corporation organized under the
laws of the United States of America or Brazil, or any political
subdivision of either, that is now or hereafter becomes a consolidated
Subsidiary and any other consolidated Subsidiary that (i) as of the end of
any of the three (3) then most recently ended fiscal years of the Company
owns assets determined on a consolidated basis for such Subsidiary and its
Subsidiaries constituting more than 10% of the total assets of the
Consolidated Group taken as a whole determined on a consolidated basis as
of the end of the same fiscal year
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and (ii) has during any of the three (3) then most recently ended fiscal
years of the Borrower, net income determined on a consolidated basis for
such Subsidiary and its Subsidiaries in excess of 10% of the net income of
the Consolidated Group taken as a whole determined on a consolidated basis
for the same fiscal year.
"Single Employer Plan" means any Plan that is covered by Title IV of
ERISA, but that is not a Multiemployer Plan or a Multiple Employer Plan.
"Subsidiary" means, as to any Person, a corporation, partnership,
limited liability company, or other entity of which shares of stock or
other ownership interests having ordinary voting power to elect a majority
of the directors or other managers of such corporation, partnership,
limited liability company, or other entity (irrespective of whether or not
at the time, any class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) are at the
time owned by such Person directly or indirectly through Subsidiaries.
Unless otherwise identified, "Subsidiary" or "Subsidiaries" shall mean
Subsidiaries of the Borrower.
"Support Obligations" means, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness of any
other Person in any manner, whether direct or indirect, and including
without limitation any obligation, whether or not contingent, (i) to
purchase any such Indebtedness or any Property constituting security
therefor, (ii) to advance or provide funds or other support for the payment
or purchase of any such Indebtedness or to maintain working capital,
solvency, or other balance sheet condition of such other Person (including
without limitation keep well agreements, maintenance agreements, comfort
letters, or similar agreements or arrangements) for the benefit of any
holder of Indebtedness of such other Person, (iii) to lease or purchase
Property, securities, or services primarily for the purpose of assuring the
holder of such Indebtedness, or (iv) to otherwise assure or hold harmless
the holder of such Indebtedness against loss in respect thereof. The amount
of any Support Obligation hereunder shall (subject to any limitations set
forth therein) be deemed to be an amount equal to the outstanding principal
amount (or maximum principal amount, if larger) of the Indebtedness in
respect of which such Support Obligation is made.
"Term Loan" shall have the meaning assigned to such term in Section
2.3(a).
"Term Note" or "Term Notes" means the promissory notes of the Borrower
in favor of each of the Lenders evidencing the portion of the Term Loan
provided pursuant to section 2.3(d), individually or collectively, as
appropriate, as such promissory notes may be amended, modified, restated,
supplemented, extended, renewed, or replaced from time to time.
"Termination Date" means, as to each Lender, the third year
anniversary of the Effective Date, or if extended with the written consent
of such Lender, such later date as to which the Termination Date may be
extended.
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"Voting Stock" means, with respect to any Person, Capital Stock issued
by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to
vote has been suspended by the happening of such a contingency.
"Wachovia" means Wachovia Bank, National Association and its
successors.
1.2 Computation of Time Periods and Dollar Equivalents.
For purposes of computation of periods of time hereunder, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding."
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 6.1
hereof (or, prior to the delivery of the first financial statements pursuant to
Section 6.1 hereof, consistent with the annual audited financial statements
referenced in Section 5.1(i) hereof); provided, however, if (a) the Borrower
shall object to determining such compliance on such basis at the time of
delivery of such financial statements due to any change in GAAP or the rules
promulgated with respect thereto or (b) the Administrative Agent or the Required
Lenders shall so object in writing within thirty (30) days after delivery of
such financial statements, then such calculations shall be made on a basis
consistent with the most recent financial statements delivered by the Borrower
to the Lenders as to which no such objection shall have been made.
SECTION 2
CREDIT FACILITIES
2.1 [Intentionally Omitted.]
2.2 [Intentionally Omitted.]
2.3 Term Loan Facility.
(a) Term Loan. Subject to the terms and conditions hereof and in reliance
upon the representations and warranties set forth herein, each Lender severally
agrees to make available to the Borrower on the Funding Date such Lender's
Commitment Percentage of a term loan in
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Dollars (the "Term Loan") in the aggregate principal amount of ONE HUNDRED
TWENTY FIVE MILLION DOLLARS ($125,000,000) (the "Committed Amount") for the
purposes hereinafter set forth. At any given time the Term Loan may be either a
Base Rate Loan or a LIBOR Loan as the Borrower may request.
(b) Repayment of Term Loan. Subject to Section 2.3 (c), the principal
amount of the Term Loan shall be repaid in twelve (12) consecutive 90 day
installments as follows, unless accelerated sooner pursuant to Section 7.2:
=======================================================
Principal Amortization Term Loan
Payment Dates Principal Amortization Payment
-------------------------------------------------------
July 9, 2003 $ 3,125,000
-------------------------------------------------------
October 7, 2003 $ 3,125,000
-------------------------------------------------------
January 5, 2004 $ 3,125,000
-------------------------------------------------------
April 5, 2004 $ 3,125,000
-------------------------------------------------------
July 5, 2004 $ 3,125,000
-------------------------------------------------------
October 4, 2004 $ 3,125,000
-------------------------------------------------------
January 3, 2005 $ 3,125,000
-------------------------------------------------------
April 4, 2005 $ 3,125,000
-------------------------------------------------------
July 4, 2005 $ 3,125,000
-------------------------------------------------------
October 3, 2005 $ 3,125,000
-------------------------------------------------------
January 2, 2006 $46,875,000
-------------------------------------------------------
Termination Date $46,875,000
-------------------------------------------------------
(c) The amounts set forth in the table above shall be reduced by any
prepayment made pursuant to Section 3.3(a) on a pro rata basis.
(d) Interest on the Term Loan. Subject to the provisions of Section
3.1, the Term Loan shall bear interest as follows:
(i) Base Rate Loan. During such periods as the Term Loan shall be
a Base Rate Loan, such Base Rate Loan shall bear interest at a per
annum rate equal to the sum of the Base Rate plus the Applicable
Percentage; and
(ii) LIBOR Loan. During such periods as the Term Loan shall be a
LIBOR Loan, such LIBOR Loan shall bear interest at a per annum rate
equal to the sum of the LIBOR Rate plus the Applicable Percentage.
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Interest on the Term Loan shall be payable in arrears on each Interest
Payment Date.
(e) Term Notes. Upon the request of any Lender, such Lender's
Commitment Percentage of the Committed Amount shall be evidenced by a duly
executed promissory note of the Borrower to such Lender in substantially
the form of Schedule 2.3(d).
(f) Maximum Number of LIBOR Loans. The Borrower will be limited to a
maximum number of one (1) LIBOR Loan outstanding at any time. For purposes
hereof, LIBOR Loans with separate or different Interest Periods will be
considered as separate LIBOR Loans even if their Interest Periods expire on
the same date.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate.
Upon the occurrence, and during the continuance, of an Event of Default,
any overdue principal of and, to the extent permitted by law, overdue interest
on the Loan and any other amounts then due and owing hereunder or under the
other Credit Documents shall bear interest, payable on demand, at a per annum
rate 2% greater than the Base Rate plus the Applicable Percentage that would
otherwise be applicable thereto (or if no rate is applicable, whether in respect
of interest, fees, or other amounts, then 2% greater than the Base Rate).
3.2 Extension and Conversion.
The Borrower shall have the option, on any Business Day, to extend the
existing Loan into a subsequent permissible Interest Period or to convert the
Loan into a Loan of another interest rate type; provided, however, that (i)
except as provided in Section 3.8, 3.9, and 3.11, a LIBOR Loan may be converted
into a Base Rate Loan only on the last day of the Interest Period applicable
thereto, (ii) a LIBOR Loan may be extended, and a Base Rate Loan may be
converted into a LIBOR Loan, only if the conditions in subsection (b) of Section
4.2 have been satisfied, (iii) a Loan extended as, or converted into, a LIBOR
Loan shall be subject to the terms of the definition of "Interest Period" set
forth in Section 1.1, and (iv) any request for extension or conversion of a
LIBOR Loan that shall fail to specify an Interest Period shall be deemed to be a
request for an Interest Period of three (3) months. Each such extension or
conversion shall be effected by the Borrower by giving a Notice of
Extension/Conversion (or telephone notice promptly confirmed in writing) to the
Administrative Agent prior to 11:00 A.M. (Charlotte, North Carolina time) on the
Business Day of, in the case of the conversion of a LIBOR Loan into a Base Rate
Loan, and on the third Business Day prior to, in the case of the extension of a
LIBOR Loan as, or conversion of a Base Rate Loan into, a LIBOR Loan, the date of
the proposed extension or conversion, specifying (A) the date of the proposed
extension or conversion, (B) the Loan to be so extended or converted, (C) the
type of Loan into which such Loan is to be converted, and, if appropriate, (D)
the applicable Interest Periods with respect thereto. Each request for extension
or conversion shall be irrevocable and shall constitute a representation and
warranty by the Borrower of the matters specified in subsection (b) of Section
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4.2. So long as there is no Default or Event of Default, in the event the
Borrower does not request extension or conversion of the LIBOR Loan in
accordance with this Section, or any such conversion or extension is not
required by this Section, then such LIBOR Loan shall be continued as a LIBOR
Loan at the end of each Interest Period applicable thereto for another Interest
Period of three (3) months, until the Borrower selects an alternate Interest
Period or converts such Loan to a Base Rate Loan. It being hereby understood and
agreed that such failure by the Borrower to request such extension or conversion
resulting in the automatic continuation of a LIBOR Loan for another Interest
Period shall also constitute a representation and warranty by the Borrower of
the matters specified in subsection (b) of Section 4.2. In the event the
continuation of a LIBOR Loan is not permitted hereunder, such LIBOR Loan shall
automatically be converted to a Base Rate Loan at the end of the applicable
Interest Period with respect thereto. The Administrative Agent shall give each
Lender notice as promptly as practicable of any such proposed extension or
conversion affecting the Loan.
3.3 Prepayments.
(a) Voluntary Prepayments. The Loan may be repaid in whole or in part
without premium or penalty; provided that (i) a LIBOR Loan may be prepaid only
upon three (3) Business Days' prior written notice to the Administrative Agent,
and a Base Rate Loan may be prepaid only upon at least one (1) Business Day's
prior written notice to the Administrative Agent, (ii) prepayment of a LIBOR
Loan must be accompanied by payment of any amounts owing under Section 3.14, and
(iii) a partial prepayment shall be in minimum principal Dollar Amounts of
$10,000,000, and in integral multiples of $1,000,000 in excess thereof;
provided, however that any voluntary prepayment of the Term Loan made (i) on or
prior to the date that is one (1) calendar year from the Effective Date shall be
made at 101% of the principal amount being prepaid, (ii) after the date that is
one (1) calendar year from the Effective Date but on or prior to the date that
is 270 days thereafter shall be made at 100.5% of the principal amount being
prepaid, (iii) at any time thereafter shall be made at 100% of the principal
amount being prepaid.
(b) Application. Unless otherwise specified by the Borrower, prepayments
made hereunder shall be applied to the Term Loan pro rata to the remaining
amortization periods thereof. Amounts prepaid with respect to the Term Loan may
not be reborrowed.
(c) Hedging Agreements. Each party hereby acknowledges that any prepayment
made pursuant to this Section 3.3 shall not affect the Borrower's obligations to
continue making payments under any Hedging Agreement relating to the Loan
hereunder between the Borrower and any Lender, or any Affiliate of a Lender, and
any such Hedging Agreement shall remain in full force and effect notwithstanding
such prepayment, subject to the terms of such Hedging Agreement.
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3.4 [Intentionally Omitted.]
3.5 Administrative Agent's Fees.
The Borrower agrees to pay to the Administrative Agent, for its own
account, an annual administrative fee and such other fees, if any, referred to
in the Administrative Agent's Fee Letter (collectively, the "Administrative
Agent's Fees").
3.6 LIBOR Reserve Compensation.
For so long as any Lender maintains reserves against "eurocurrency
liabilities" (or any other category of liabilities that includes deposits by
reference to which the interest rate on any LIBOR Loan is determined), and, as a
result, the cost to such Lender of making or maintaining its LIBOR Loan is
increased, then such Lender may require the Borrower to pay, contemporaneously
with each payment of interest on such LIBOR Loan of such Lender, additional
interest at a rate per annum up to but not exceeding the excess of (i) (A) the
applicable LIBOR Rate divided by (B) one minus the LIBOR Reserve Percentage over
(ii) the applicable LIBOR Rate. Any Lender wishing to require payment of such
additional interest (x) shall so notify the Borrower and the Administrative
Agent, in which case such additional interest on the LIBOR Loan of such Lender
shall be payable to such Lender at the place indicated in such notice with
respect to each Interest Period commencing at least three (3) Business Days
after the giving of such notice and (y) shall furnish to the Borrower at least
five (5) Business Days prior to each date on which interest is payable on the
LIBOR Loan a certificate setting forth the amount to which such Lender is then
entitled under this Section 3.6 (that shall be consistent with such Lender's
good faith estimate of the level at which the related reserves are maintained by
it). Each such certificate shall be accompanied by such information as the
Borrower may reasonably request as to the computation set forth therein.
3.7 Capital Adequacy.
If any Lender has determined, after the date hereof, that the adoption or
the becoming effective of, or any change in, or any change by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable law, rule, or regulation regarding capital adequacy, or compliance by
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank, or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's capital or assets as a consequence of its commitments or obligations
hereunder to a level below that which such Lender could have achieved but for
such adoption, effectiveness, change, or compliance (taking into consideration
such Lender's policies with respect to capital adequacy), then, upon notice from
such Lender to the Borrower, the Borrower shall be obligated to pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction. Each determination by any such Lender of amounts owing under this
Section shall, absent manifest error, be conclusive and binding on the parties
hereto. The Lender will, upon request, provide a certificate in reasonable
detail as to the amount of such increased cost or reduction in amount received
and method of calculation.
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3.8 Unavailability.
In the event, and on each occasion, that on the day two (2) Business Days
prior to the commencement of any Interest Period for a LIBOR Loan of any amount
or Interest Period, the Administrative Agent shall have determined or shall have
been notified by the Required Lenders (a) that deposits in the relevant amount
and for the relevant Interest Period are not available in the relevant market to
any Lender, or that reasonable means do not exist for ascertaining the LIBOR
Rate for any such Loan, or (b) that the rates at which such deposits are being
offered will not adequately and fairly reflect the cost to any Lender of making
or maintaining its LIBOR Loan during such Interest Period, the Administrative
Agent shall promptly give written or telecopy notice of such determination to
the Borrower and the Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, any request by the
Borrower for a LIBOR Loan of the affected amount or Interest Period, or a
conversion to or continuation of a LIBOR Loan of the affected amount or Interest
Period shall be deemed rescinded. Each determination by the Administrative Agent
hereunder shall be conclusive absent manifest error.
3.9 Illegality.
(a) Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Effective Date shall make it unlawful for any Lender to make
or maintain the LIBOR Loan as contemplated by this Credit Agreement, then such
Lender, together with Lenders giving notice under Section 3.8 and 3.10, shall be
an "Affected Lender" and by written notice to the Borrower and to the
Administrative Agent:
(i) such Lender may declare that the LIBOR Loan will not thereafter
(for the duration of such unlawfulness or impossibility) be made by such
Lender hereunder, whereupon any request for a LIBOR Loan shall, as to such
Lender only be deemed a request for a Base Rate Loan (unless it should also
be illegal for the Affected Lender to provide a Base Rate Loan, in which
case such Loan shall bear interest at a commensurate rate to be agreed upon
by the Administrative Agent and the Affected Lender, and so long as no
Event of Default shall have occurred and be continuing, the Borrower),
unless such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that the outstanding LIBOR Loan, made by
it be converted to a Base Rate Loan, in which event the LIBOR Loan shall be
automatically converted to a Base Rate Loan as of the effective date of
such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above with
respect to the Loan, all payments and prepayments of principal that would
otherwise have been applied to repay the LIBOR Loan that would have been made by
such Lender or the converted LIBOR Loan of such Lender shall instead be applied
to repay the Base Rate Loan made by such Lender in lieu of, or resulting from
the conversion, of such LIBOR Loan.
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(b) For purposes of this Section 3.9, a notice to the Borrower by any
Lender shall be effective as to each such Loan, if lawful, on the last day of
the Interest Period currently applicable to such Loan; in all other cases such
notice shall be effective on the date of receipt by the Borrower.
3.10 Requirements of Law.
If, after the date hereof, the adoption of or any change in any Requirement
of Law or in the interpretation or application thereof applicable to any Lender,
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority, in each
case made subsequent to the Effective Date (or, if later, the date on which such
Lender becomes a Lender):
(a) shall subject such Lender to any tax of any kind whatsoever with
respect to a LIBOR Loan made by it or its obligation to make a LIBOR Loan, or
change the basis of taxation of payments to such Lender in respect thereof
(except for (i) Non-Excluded Taxes covered by Section 3.13 (including
Non-Excluded Taxes imposed solely by reason of any failure of such Lender to
comply with its obligations under Section 3.13(b)) and (ii) changes in taxes
measured by or imposed upon the overall net income, or franchise tax (imposed in
lieu of such net income tax), of such Lender or its applicable lending office,
branch, or any affiliate thereof));
(b) shall impose, modify, or hold applicable any reserve, special deposit,
compulsory loan, or similar requirement against assets held by, deposits or
other liabilities in or for the account of, advances, loans, or other extensions
of credit by, or any other acquisition of funds by, any office of such Lender
that is not otherwise included in the determination of the LIBOR Rate hereunder;
or
(c) shall impose on such Lender any other condition (excluding any tax of
any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing, or maintaining a LIBOR Loan or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, upon notice to the
Borrower from such Lender, through the Administrative Agent, in accordance
herewith, the Borrower shall be obligated to promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable; provided that, in any such case,
the Borrower may elect to convert the LIBOR Loan made by such Lender hereunder
to a Base Rate Loan by giving the Administrative Agent at least one (1) Business
Day's notice of such election, in which case the Borrower shall promptly pay to
such Lender, upon demand, without duplication, such amounts, if any, as may be
required pursuant to Section 3.13. If any Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall provide notice thereof
to the Borrower, promptly upon occurrence of such event, but in any case within
three (3) days from the date of such event, through the Administrative Agent,
certifying (x) that one of the events described in this paragraph (a) has
occurred and describing in reasonable detail the nature of such event, (y)
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as to the increased cost or reduced amount resulting from such event and (z) as
to the additional amount demanded by such Lender and a reasonably detailed
explanation of the calculation thereof. Such a certificate as to any additional
amounts payable pursuant to this subsection submitted by such Lender, through
the Administrative Agent, to the Borrower shall be conclusive and binding on the
parties hereto in the absence of manifest error. This covenant shall survive the
termination of this Credit Agreement and the payment of the Loan and all other
amounts payable hereunder.
3.11 Inability To Determine Interest Rate.
If prior to the first day of any Interest Period, the Administrative Agent
shall have reasonably determined that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for ascertaining the
LIBOR Rate for such Interest Period, the Administrative Agent shall give
telecopy or telephonic notice thereof to the Borrower and the Lenders as soon as
practicable thereafter. If such notice is given (a) an affected LIBOR Loan
requested to be made on the first day of such Interest Period shall be made, at
the sole option of the Borrower, as a Base Rate Loan, or such request shall be
cancelled, and (b) an affected Loan that was to have been converted on the first
day of such Interest Period to or continued as a LIBOR Loan shall be converted
to or continued, at the sole option of the Borrower, as a Base Rate Loan. Until
such notice has been withdrawn by the Administrative Agent, no further LIBOR
Loan shall be made or continued as such, nor shall the Borrower have the right
to convert a Base Rate Loan to such affected LIBOR Loan.
3.12 Replacement of Lenders.
If any Lender requests compensation pursuant to Section 3.6, 3.7, 3.10, or
3.13, or any Lender's obligation to make or continue, or to convert a Loan of
any type into the other type of Loan shall be suspended pursuant to Section 3.8,
3.9, or 3.11 (any such Lender requesting such compensation, or whose obligations
are so suspended, being herein called a "Requesting Lender"), the Borrower, upon
three (3) Business Days' notice, may require that such Requesting Lender
transfer all of its right, title, and interest under this Credit Agreement and
such Requesting Lender's Term Note to any bank or other financial institution (a
"Proposed Lender") identified by the Borrowers that is reasonably satisfactory
to the Administrative Agent (i) if such Proposed Lender agrees to assume all of
the obligations of such Requesting Lender hereunder, and to purchase such
Requesting Lender's Loan hereunder for consideration equal to the aggregate
outstanding principal amount of such Requesting Lender's Loan, together with
interest accrued thereon to the date of such purchase, and satisfactory
arrangements are made for payment to such Requesting Lender of all other amounts
payable hereunder to such Requesting Lender on or prior to the date of such
transfer (including any fees accrued hereunder and any amounts that would be
payable under Section 3 as if such Requesting Lender's Loan was being prepaid in
full on such date) and (ii) if such Requesting Lender has requested compensation
pursuant to Section 3.6, 3.7, 3.10, or 3.13, such Proposed Lender's aggregate
requested compensation, if any, pursuant to said Section 3.6, 3.7, or 3.10 with
respect to such Requesting Lender's Loan is lower than that of the Requesting
Lender. Subject to the provisions of Section 10.3, such Proposed Lender shall be
a "Lender" for all purposes hereunder. Without prejudice to the survival of any
other agreement of the Borrower hereunder the agreements of the Borrower
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contained in Sections 3.6, 3.7, 3.10, 3.13 and 10.5 (without duplication of any
payments made to such Requesting Lender by the Borrower or the Proposed Lender)
shall survive for the benefit of such Requesting Lender under this Section 3.12
with respect to the time prior to such replacement.
3.13 Taxes.
(a) Except as provided below in this subsection, all payments made by the
Borrower under this Credit Agreement and any Notes shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp, or other taxes, levies, imposts, duties, charges, fees,
deductions, or withholdings, now or hereafter imposed, levied, collected,
withheld, or assessed by any court, or governmental body, agency, or other
official, excluding (A) taxes measured by or imposed upon the overall net income
of any Lender or its applicable lending office, or any branch or affiliate
thereof, and (B) all franchise taxes, branch taxes, taxes on doing business, or
taxes on the overall capital, or net worth of any Lender or its applicable
lending office, or any branch or affiliate thereof, in each case imposed in lieu
of net income taxes, imposed: (i) by the jurisdiction under the laws of which
such Lender, applicable lending office, branch, or affiliate is organized or is
located, or in which its principal executive office is located, or any nation
within which such jurisdiction is located or any political subdivision thereof;
or (ii) by reason of any present or former connection between the jurisdiction
imposing such tax and such Lender, applicable lending office, branch, or
affiliate other than a connection arising solely from such Lender having
executed, delivered, or performed its obligations, or received payment under, or
enforced, this Credit Agreement or any Notes. If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions, or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable to
the Administrative Agent or any Lender hereunder or under any Notes, (A) the
amounts so payable to the Administrative Agent or such Lender shall be increased
to the extent necessary to yield to the Administrative Agent or such Lender
(after payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Credit
Agreement and any Notes, provided, however, that the Borrower shall be entitled
to deduct and withhold any Non-Excluded Taxes and shall not be required to
increase any such amounts payable to any Lender that is not incorporated under
the laws of the United States of America or a state thereof if such Lender fails
to comply with the requirements of paragraph (b) of this subsection whenever any
Non-Excluded Taxes are payable by the Borrower, and (B) as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest, or penalties that may become payable by the Administrative Agent or
any Lender as a result of any such failure. The agreements in this subsection
shall survive the termination of this Credit Agreement and the payment of the
Loan and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
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(X) (i) on or before the date of any payment by the Borrower under
this Credit Agreement or Notes to such Lender, deliver to the Borrower
and the Administrative Agent two (2) duly completed copies of
applicable United States Internal Revenue Service Form W-8BEN or
W-8ECI, or applicable successor form, as the case may be, certifying
that it is entitled to receive payments under this Credit Agreement
and any Notes without deduction or withholding of any United States
federal income taxes;
(ii) deliver to the Borrower and the Administrative Agent two (2)
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Borrower
or the Administrative Agent; or
(Y) in the case of any such Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, (i) represent to the Borrower
(for the benefit of the Borrower and the Administrative Agent) that it is
not a bank within the meaning of Section 881(c)(3)(A) of the Code, (ii)
agree to furnish to the Borrower on or before the date of any payment by
the Borrower, with a copy to the Administrative Agent two (2) accurate and
complete original signed copies of Internal Revenue Service Form W-8BEN, or
successor applicable form certifying to such Lender's legal entitlement at
the date of such certificate to an exemption from U.S. withholding tax
under the provisions of Section 881(c) of the Code with respect to payments
to be made under this Credit Agreement and any Notes (and to deliver to the
Borrower and the Administrative Agent two (2) further copies of such form
on or before the date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recently provided
form and, if necessary, obtain any extensions of time reasonably requested
by the Borrower or the Administrative Agent for filing and completing such
forms), and (iii) agree, to the extent legally entitled to do so, upon
reasonable request by the Borrower, to provide to the Borrower (for the
benefit of the Borrower and the Administrative Agent) such other forms as
may be reasonably required in order to establish the legal entitlement of
such Lender to an exemption from withholding with respect to payments under
this Credit Agreement and any Notes;
unless in any such case any change in treaty, law, or regulation has occurred
after the date such Person becomes a Lender hereunder that renders all such
forms inapplicable or that would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent. Each Person that shall become a Lender or
a participant of a Lender pursuant to Section 10.3 shall, upon the effectiveness
of the related transfer, be required to provide all of the forms,
certifications, and statements required pursuant to this subsection; provided
that in the case of a participant of a
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Lender the obligations of such participant of a Lender pursuant to this
subsection (b) shall be determined as if the participant of a Lender were a
Lender except that such participant of a Lender shall furnish all such required
forms, certifications, and statements to the Lender from which the related
participation shall have been purchased.
3.14 Indemnity.
The Borrower shall pay to each Lender and hold each Lender harmless from
any loss or expense that such Lender may sustain or incur (excluding loss of
profit and other than through such Lender's gross negligence or willful
misconduct) as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into, or continuation of a LIBOR Loan after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Credit Agreement, (b) default by the Borrower in making any
prepayment of a LIBOR Loan after the Borrower has given a notice thereof in
accordance with the provisions of this Credit Agreement, or (c) the making of a
prepayment of a LIBOR Loan on a day that is not the last day of an Interest
Period with respect thereto. With respect to a LIBOR Loan, such payment may
include an amount equal to the excess, if any, of (i) the amount of interest
that would have accrued on the amount so prepaid, or not so borrowed, converted,
or continued, for the period from the date of such prepayment or of such failure
to borrow, convert, or continue to the last day of the applicable Interest
Period (or, in the case of a failure to borrow, convert, or continue, the
Interest Period that would have commenced on the date of such failure) in each
case at the applicable rate of interest for such Loan provided for herein
(excluding, however, the Applicable Percentage included therein, if any) over
(ii) the amount of interest (as reasonably determined by such Lender) that would
have accrued to such Lender on such amount by placing such amount on deposit for
a comparable period with leading banks in the interbank LIBOR market (but
excluding loss of profits). The covenants of the Borrower set forth in this
Section 3.14 shall survive the termination of this Credit Agreement and the
payment of the Loan and all other amounts payable hereunder.
3.15 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Loan. Each payment under this Agreement or any Note shall be applied,
first, to any fees then due and owing by the Borrower pursuant to Section 3.5,
second, to interest then due and owing in respect of the Loans of the Borrower
and, third, to principal then due and owing hereunder. Each payment on account
of any fees pursuant to Section 3.5 shall be made pro rata in accordance with
the respective amounts due and owing. Each payment (other than prepayments) by
the Borrower on account of principal of and interest on the Term Loan shall be
made pro rata according to the respective amounts due and owing in accordance
with Section 3.3 hereof.
(b) Advances. No Lender shall be responsible for the failure or delay by
any other Lender in its obligation to make its ratable share of a borrowing
hereunder; provided, however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of its obligations
hereunder. Unless the Administrative Agent shall have been notified in
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writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its ratable share of such borrowing available to
the Administrative Agent, the Administrative Agent may assume that such Lender
is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by such Lender within the time period specified therefor
hereunder, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon at a rate equal to the Federal Funds Rate for a
period of two (2) Business Days, and thereafter at the Base Rate, for the period
until such Lender makes such amount immediately available to the Administrative
Agent. If such Lender does not pay such amounts to the Administrative Agent
forthwith upon demand, the Administrative Agent may notify the Borrower and
request the Borrower to pay such amount to the Administrative Agent with
interest at the LIBOR Rate not later than 4:00 P.M. on the following Business
Day. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection shall be conclusive in the
absence of manifest error. Nothing in the preceding shall act or be construed as
a waiver of any claims or right of action that the Borrower may have against any
Lender that defaults on the payment to the Administrative Agent thereby causing
the Borrower to repay the Administrative Agent such amount advanced.
3.16 Sharing of Payments.
The Lenders agree among themselves that, in the event that any Lender shall
obtain payment in respect of any Loan or any other obligation owing to such
Lender under this Credit Agreement through the exercise of a right of setoff,
banker's lien, or counterclaim, or pursuant to a secured claim under Section 506
of Title 11 of the United States Code or other security or interest arising
from, or in lieu of, such secured claim, received by such Lender under any
applicable bankruptcy, insolvency, or other similar law or otherwise, or by any
other means, in excess of its pro rata share of such payment as provided for in
this Credit Agreement, such Lender shall promptly purchase from the other
Lenders a participation in such Loan and other obligations in such amounts, and
make such other adjustments from time to time, as shall be equitable to the end
that all Lenders share such payment in accordance with their respective ratable
shares as provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim, or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender that
shall have shared the benefit of such payment shall, by repurchase of a
participation theretofore sold, return its share of that benefit (together with
its share of any accrued interest payable with respect thereto) to each Lender
whose payment shall have been rescinded or otherwise restored. The Borrower
agrees that any Lender so purchasing such a participation may, to the fullest
extent permitted by law, exercise all rights of payment, including setoff,
banker's lien, or counterclaim, with respect to such participation as fully as
if such Lender were a holder of such Loan or other obligation in the amount of
such participation. Except as otherwise expressly provided in this Credit
Agreement, if any Lender or the Administrative Agent shall fail to remit to the
Administrative Agent or any other Lender an amount payable by such Lender or the
Administrative Agent to the Administrative Agent or such other Lender pursuant
to this Credit Agreement on the date when such amount is due, such payments
shall be made together with interest thereon for each date from the date such
amount is
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due until the date such amount is paid to the Administrative Agent or such other
Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency, or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.16 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.16 to share in the benefits of any recovery on such secured claim.
3.17 Payments, Computations, Etc.
(a) Each payment on account of an amount due from the Borrower hereunder or
under any other Credit Document shall be made by the Borrower to the
Administrative Agent for the pro rata account of the Lenders entitled to receive
such payment as provided herein. Upon request, the Administrative Agent will
give the Borrower a statement showing the computation used in calculating such
amount, which statement shall be conclusive in the absence of manifest error.
The obligation of the Borrower to make each payment on account of such amount
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment, except to the extent such tender or recovery shall result in the
actual receipt by the Administrative Agent of the full amount payable hereunder.
The Borrower agrees that its obligation to make each payment on account of such
amount shall be enforceable as an additional or alternative claim for recovery
of the amount (if any) by which such actual receipt shall fall short of the full
amount payable hereunder, and shall not be affected by judgment being obtained
for such amount.
(b) Except as otherwise specifically provided herein, all payments
hereunder shall be made to the Administrative Agent in immediately available
funds, without offset, deduction, counterclaim, or withholding of any kind, not
later than 2:00 P.M. (local time in the place where such payment is required to
be made pursuant to this subsection (b)) on the date when due, to the account
specified on Schedule 3.17(b) or at such other place as may be designated by the
Administrative Agent to the Borrower in writing. Payments received after such
time shall be deemed to have been received on the next succeeding Business Day.
The Borrower shall, at the time it makes any payment under this Credit
Agreement, specify to the Administrative Agent the Loan, Fees, interest, or
other amounts payable by the Borrower hereunder to which such payment is to be
applied (and in the event that it fails so to specify, or if such application
would be inconsistent with the terms hereof, the Administrative Agent shall
distribute such payment to the Lenders subject to the terms of Section 3.15(a)).
The Administrative Agent will distribute such payments to such Lenders, if any
such payment is received prior to 12:00 Noon (Charlotte, North Carolina time) on
a Business Day in like funds as received prior to the end of such Business Day
and otherwise the Administrative Agent will distribute such payment to such
Lenders on the next succeeding Business Day. Whenever any payment hereunder
shall be stated to be due on a day that is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day (subject to
accrual of interest and Fees for the period of such extension), except that in
the case of a LIBOR Loan, if the extension would cause the payment to be made in
the next following calendar month, then such payment shall instead be made on
the next preceding Business Day. Except as expressly provided otherwise herein,
all computations of interest and fees shall be made on the basis of actual
number of days elapsed over a year of 360 days, except with respect to
computation of interest on a Base Rate Loan that shall be
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calculated based on a year of 365 or 366 days, as appropriate. Interest shall
accrue from and include the date of borrowing, but exclude the date of payment.
(c) Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Credit Agreement to the contrary, after the occurrence
and during the continuance of an Event of Default, all amounts collected or
received by the Administrative Agent or any Lender on account of the Loan or the
Revolving Loans or any other amounts outstanding under any of the Credit
Documents or the Revolving Credit Documents shall be paid over or delivered on a
pro rata basis, between the Lenders hereunder and the Revolving Lenders (such
pro rata allocation to be accomplished by commercially reasonable means
including, without limitation, the purchase of participations by the Lenders of
the Revolving Loans as may be necessary), for distribution as follows:
FIRST, to the payment of all reasonable, documented out-of-pocket
costs and expenses (including without limitation reasonable attorneys'
fees) of (i) the Administrative Agent in connection with enforcing the
rights of the Lenders under the Credit Documents, and (ii) the Revolving
Administrative Agent in connection with enforcing the rights of the
Revolving Lenders under the Revolving Credit Documents;
SECOND, to payment of any fees owed to (i) the Administrative Agent
pursuant to the terms of the Credit Documents and (ii) the Revolving
Administrative Agent pursuant to the terms of the Revolving Credit
Documents;
THIRD, to the payment of all reasonable, documented, out-of-pocket
costs and expenses (including without limitation, reasonable attorneys'
fees) of (i) each of the Lenders in connection with enforcing its rights
under the Credit Documents with respect to the Loan owing to such Lender
and (ii) each of the Revolving Lenders in connection with enforcing its
rights under the Revolving Credit Documents with respect to the Revolving
Loans owing to such Revolving Lender;
FOURTH, to the payment of accrued interest and fees on or in respect
of the Loan and the Revolving Loans, and including with respect to any
Hedging Agreement between the Borrower and any Lender or Revolving Lender,
or any Affiliate of a Lender or a Revolving Lender, any fees, premiums, and
scheduled periodic payments due under such Hedging Agreement and any
interest accrued thereon;
FIFTH, to the payment of the outstanding principal amount of the
Borrower's obligations under the Credit Documents and the Revolving Credit
Documents, and including with respect to any Hedging Agreement between the
Borrower and any Lender or Revolving Lender, or any Affiliate of a Lender
or Revolving Lender, any breakage, termination, or other payments due under
such Hedging Agreements and any interest accrued thereon;
SIXTH, to all other obligations that shall have become due and payable
under the Credit Documents or the Revolving Credit Documents or otherwise
and not repaid pursuant to clauses "FIRST" through "FIFTH" above; and
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SEVENTH, to the payment of the surplus, if any, to whomever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loan held
by such Lender bears to the aggregate then outstanding Loans) of amounts
available to be applied pursuant to clauses "FOURTH" and "FIFTH" above; and
(iii) each of the Revolving Lenders shall receive an amount equal to its pro
rata share (based on the proportion that the then outstanding Revolving Loans
held by such Revolving Lender bears to the aggregate the outstanding Revolving
Loans) of amounts available to be applied pursuant to clauses "FOURTH" and
"FIFTH" above.
3.18 Obligation of Lenders to Mitigate.
Each Lender agrees that, as promptly as practicable after such Lender
becomes aware of the occurrence of an event or the existence of a condition that
would cause such Lender to become an Affected Lender or that would entitle such
Lender to receive payments under Sections 3.6, 3.7, or 3.13, it will, to the
extent not inconsistent with any applicable legal or regulatory restrictions,
use reasonable efforts (i) to make, issue, fund, or maintain the Commitments of
such Lender or the affected Loan of such Lender through another lending office
of such Lender, or (ii) take such other measures as such Lender may deem
reasonable, if as a result thereof the circumstances that would cause such
Lender to be an Affected Lender would cease to exist or the additional amounts
that would otherwise be required to be paid to such Lender pursuant to Sections
3.6, 3.7, or 3.13 would be reduced and if, as determined by such Lender in its
sole discretion, the making, issuing, funding, or maintaining of such
Commitments or Loan through such other lending office or in accordance with such
other measures, as the case may be, would not otherwise materially adversely
affect such Commitments or Loan or would not be otherwise disadvantageous to the
interests of such Lender.
3.19 Evidence of Debt.
(a) Each Lender shall maintain an account or accounts evidencing each Loan
made by such Lender to the Borrower from time to time, including the amounts and
currencies of principal and interest payable and paid to such Lender from time
to time under this Credit Agreement. Each Lender will make diligent efforts to
maintain the accuracy of its account or accounts and to promptly update its
account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant to
Section 10.3(c) hereof, and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and Interest
Period of each such Loan hereunder, (ii) the amount of any principal or interest
due and payable or to become due and payable to each Lender hereunder, and (iii)
the amount of any sum received by the Administrative Agent hereunder from or for
the account of the Borrower and each Lender's share thereof. The Administrative
Agent will make diligent efforts to maintain the accuracy of the subaccounts
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referred to in the preceding sentence and to promptly update such subaccounts
from time to time, as necessary.
(c) Absent manifest error, the entries made in the accounts, Register and
subaccounts maintained pursuant to subsection (b) of this Section 3.19 (and, if
consistent with the entries of the Administrative Agent, subsection (a) of this
Section 3.19) shall be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain any such account,
such Register or such subaccount, as applicable, or any error therein, shall not
in any manner affect the obligation of the Borrower to repay the Loan made by
such Lender in accordance with the terms hereof.
SECTION 4
CONDITIONS
4.1 Conditions to Closing.
This Credit Agreement shall become effective on the Effective Date upon the
satisfaction of the following conditions precedent:
(a) Execution of Credit Agreement and Credit Documents. Receipt of (i)
multiple counterparts of this Credit Agreement executed by a duly authorized
officer of each party hereto, and (ii) to the extent applicable, a Term Note for
each Lender who so requests executed by a duly authorized officer of the
Borrower hereto.
(b) Legal Opinions. Receipt of multiple counterparts of (a) the legal
opinion of Xxxxxx X. Xxxxxxx, III, General Counsel of the Borrower and (b) the
legal opinion of Xxxxxxxx & Xxxxxxxx LLP, special counsel to the Borrower,
relating to this Credit Agreement and the other Credit Documents and the
transactions contemplated herein and therein, in each case in form and substance
reasonably acceptable to the Administrative Agent which opinions together shall
include, without limitation, an opinion that the execution, delivery, and
performance of the Credit Documents and the performance of the transactions
contemplated thereby will not conflict with, result in a breach of, require any
consent or permit any acceleration of (or require repayment of) any Indebtedness
or under any of the Borrower's corporate instruments and material agreements.
(c) Financial Information. Receipt by the Administrative Agent of the
consolidated financial statements of the Borrower and its subsidiaries referred
to in Section 5.1(a) and the three-year financial and operational projections
for the Borrower and its Subsidiaries referred to in Section 5.1(b) (in form and
substance reasonably satisfactory to the Administrative Agent).
(d) Absence of Legal Proceedings. Except as set forth on Schedule 5.5, the
absence of any action, suit, investigation or proceeding pending in any court or
before any arbitrator or governmental instrumentality that is reasonably likely
to have a Material Adverse Effect on the Consolidated Group taken as a whole.
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(e) Corporate Documents. Receipt of the following (or their equivalent) for
each Credit Party:
(i) Articles of Incorporation. Copies of the articles of incorporation
or charter documents certified to be true and complete as of a recent date
by the appropriate governmental authority of the state of its
incorporation.
(ii) Resolutions. Copies of resolutions of the Board of Directors or
comparable managing body approving and adopting the respective Credit
Documents, the transactions contemplated therein and authorizing execution
and delivery thereof, certified by a secretary or assistant secretary as of
the Effective Date to be true and correct and in force and effect as of
such date.
(iii) Bylaws. Copies of the bylaws or comparable operating agreement
certified by a secretary or assistant secretary as of the Effective Date to
be true and correct and in force and effect as of such date.
(iv) Good Standing. Copies, where applicable, of certificates of good
standing, existence, or its equivalent certified as of a recent date by the
appropriate governmental authorities of the state of organization and each
other state in which the failure to so qualify and be in good standing
would be reasonably likely to have a Material Adverse Effect.
(v) Secretary's Certificate. A Secretary's certificate for the
Borrower dated as of the Effective Date substantially in the form of
Schedule 4.1(e)(v) with appropriate insertions and attachments.
(f) Fees. Receipt of all fees, if any, then owing pursuant to the
Administrative Agent's Fee Letter, Section 3.5, or pursuant to any Credit
Documents.
(g) Section 4.2 Conditions. The conditions specified in Section 4.2 shall
be satisfied.
(h) Account Designation Letter. Receipt by the Administrative Agent of an
executed counterpart of the Account Designation Letter.
(i) Officer's Certificate. Receipt by the Administrative Agent of a
certificate of a Responsible Officer certifying that (i) each of the Borrower
and the Guarantors is solvent as of the Effective Date and (ii) the Borrower is
in pro forma compliance with all of the covenants in Section 6.7 both before and
after giving effect to the Loan to be made on the Funding Date.
(j) Repayment of Existing Credit Agreements. Repayment in full of the
Existing Credit Agreements (or satisfactory arrangements to repay such amounts
with the proceeds hereof shall have been made) should there be borrowings
outstanding or other amounts owing thereunder and, in any event, termination of
all commitments thereunder as of the Effective Date.
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(k) Payment Instructions. Receipt by the Administrative Agent of payment
instructions with respect to each wire transfer to be made by the Administrative
Agent on behalf of the Lenders or the Borrower on the Funding Date setting forth
the amount of such transfer, the purpose of such transfer, the name and number
of the account to which such transfer is to be made, the name and ABA number of
the bank or other financial institution where such account is located and the
name and telephone number of an individual that can be contacted to confirm
receipt of such transfer.
(l) No Material Adverse Effect. No Material Adverse Effect shall have
occurred since July 1, 2002.
(m) Consolidated EBITDA. Receipt by the Administrative Agent of evidence
satisfactory to the Administrative Agent that Consolidated EBITDA for the
twelve-month period ending December 31, 2002, was not less than $250,000,000.
(n) Evidence of Insurance. The Administrative Agent shall have received a
certificate setting forth the policy number and coverage amount of all currently
existing insurance policies evidencing liability and casualty insurance meeting
the requirements set forth herein.
(o) Revolving Credit Agreement. Execution of definitive documentation for
the Revolving Credit Agreement, in form and substance satisfactory to the
Lenders.
(p) Additional Matters. All other documents and legal matters in connection
with the transactions contemplated by this Credit Agreement shall be reasonably
satisfactory in form and substance to the Administrative Agents and the Required
Lenders.
4.2 Conditions to the Loan.
The obligation of each Lender to make the Term Loan hereunder on the
Funding Date is subject to the satisfaction of the following conditions
precedent:
(a) Representations and Warranties. The representations and warranties made
by any Credit Party herein or in any other Credit Document or that are contained
in any certificate furnished at any time under or in connection herewith or
therewith shall be true and correct in all material respects on and as of the
date of such Loan as if made on and as of such date (except for those that
expressly relate to an earlier date and except for those made in certificates
that have been superseded or replaced by more recent certificates, so long as
those made in superseded or replaced certificates were true and correct in all
material respects on the date made).
(b) No Default or Event of Default. No Default or Event of Default shall
have occurred and be continuing on such date or after giving effect to the Loan
to be made on such date unless such Default or Event of Default shall have been
waived in accordance with this Credit Agreement.
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(c) Material Adverse Effect. None of the material claims, litigation,
investigations, or proceedings listed on Schedule 5.5 has been determined in
such a manner that has had or will have a Material Adverse Effect.
Each request for an extension or conversion of a Loan and each acceptance
by the Borrower of an extension or conversion of a Loan shall be deemed to
constitute a representation and warranty by each of the Credit Parties as of the
date of such extension or conversion that the conditions in paragraph (b) of
this Section have been satisfied.
SECTION 5
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement and to make the
Term Loan herein provided for, each of the Credit Parties hereby represents and
warrants to the Administrative Agent and to each Lender that:
5.1 Financial Condition.
(a) Each of the financial statements described below (copies of which have
heretofore been provided to the Administrative Agent for distribution to the
Lenders), have been prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, are complete and correct in all material
respects and present fairly the financial condition and results from operations
of the entities and for the periods specified, subject in the case of interim
company-prepared statements to normal year-end adjustments:
(i) audited financial statements of the Borrower and its consolidated
subsidiaries dated as of June 30, 2002, including related statements of
income and cash flows certified by Ernst & Young LLP, certified public
accountants;
(ii) unaudited quarterly financial statements of the Borrower and its
consolidated subsidiaries for the quarters ending September 30, 2002 and
December 31, 2002, including related statements of income and cash flows
for the period from July 1, 2002 through December 31, 2002; and
(iii) if reasonably requested by the Lead Arranger and the
Administrative Agent, a company-prepared pro forma consolidated balance
sheet of the Borrower and its consolidated subsidiaries for the quarter
ending December 31, 2002.
(b) The three-year financial and operations projections of the Borrower and
its Subsidiaries have been prepared in good faith based upon assumptions
believed by the Borrower to be reasonable at the time made.
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5.2 Organization; Existence.
Each Credit Party and each Significant Subsidiary (a) is duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate or other necessary power and authority, and
the legal right to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
and (c) is duly qualified as a foreign entity and in good standing under the
laws of each jurisdiction where its ownership, lease, or operation of property
or the conduct of its business requires such qualification, other than in such
jurisdictions where the failure to be so qualified and in good standing would
not, in the aggregate, have a Material Adverse Effect.
5.3 Power; Authorization; Enforceable Obligations.
Each Credit Party has the corporate or other necessary power and authority,
and the legal right, to make, deliver, and perform the Credit Documents to which
it is a party and has taken all necessary corporate or other action to authorize
the execution, delivery, and performance by it of the Credit Documents to which
it is a party. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with acceptance of extensions of credit by the Borrower
or the making of the guaranties hereunder or with the execution, delivery, or
performance of any Credit Documents by the Credit Parties (other than those that
have been obtained, such filings as are required by the Securities and Exchange
Commission (or the laws, rules, and regulations administered by it), and to
fulfill other reporting requirements with Governmental Authorities) or with the
validity or enforceability of any Credit Document against the Credit Parties.
Each Credit Document to which it is a party constitutes a valid and legally
binding obligation of each Credit Party enforceable in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
5.4 Conflict.
The execution, delivery, and performance of the Credit Documents, the
borrowings hereunder and the use of the proceeds of the Loan will not (a)
violate any Requirement of Law applicable to the Borrower, any Guarantor, or any
Significant Subsidiary (except those as to which waivers or consents have been
obtained), (b) conflict with, result in a breach of or constitute a default
under (i) the articles of incorporation, bylaws, or other organizational
documents of such Person, (ii) any material indenture, agreement, or other
instrument to which such Person is a party or by which any of its properties may
be bound, or (iii) any approval of any Governmental Authority relating to such
Person, or (c) result in, or require, the creation or imposition of any Lien on
any of their respective properties or revenues pursuant to any Requirement of
Law.
5.5 No Material Litigation.
Except as set forth on Schedule 5.5 no claim, litigation, investigation, or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the best knowledge of the
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Credit Parties, threatened by or against any Credit Party or any Significant
Subsidiary or against any of their respective properties that (a) relates to the
Credit Documents or any of the transactions contemplated hereby or thereby or
(b) is reasonably likely to have a Material Adverse Effect.
5.6 No Default.
No Default or Event of Default has occurred and is continuing.
5.7 Taxes.
Except (i) for such tax-related litigation disclosed on Schedule 5.7 or
(ii) as otherwise disclosed in the audited financial statements delivered
pursuant to Section 6.1(a), each Credit Party and each Significant Subsidiary
has filed or caused to be filed all United States federal income tax returns and
all other material tax returns that, to the best knowledge of the Credit
Parties, are required to be filed and has paid (a) all taxes shown to be due and
payable on said returns or (b) all taxes shown to be due and payable on any
assessments of which it has received notice made against it or any of its
property and all other taxes, fees, or other charges imposed on it or any of its
property by any Governmental Authority (other than any (i) taxes, fees, or other
charges with respect to which the failure to pay, in the aggregate, would not
have a Material Adverse Effect or (ii) taxes, fees, or other charges the amount
or validity of which are currently being contested and with respect to which
reserves in conformity with GAAP have been provided on the books of such
Person), and no tax Lien has been filed, and, to the best knowledge of the
Credit Parties, no claim is being asserted, with respect to any such tax, fee,
or other charge.
5.8 ERISA
Except as is not reasonably likely to have a Material Adverse Effect:
(a) (i) No ERISA Event has occurred, and, to the best knowledge of the
Credit Parties, no event or condition has occurred or exists as a result of
which any ERISA Event could reasonably be expected to occur, with respect to any
Plan; (ii) no "accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or not waived, has
occurred with respect to any Plan (other than a Multiemployer Plan) and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan
(other than a Multiemployer Plan); (iii) each Plan (other than a Multiemployer
Plan) has been maintained, operated, and funded in compliance with its own terms
and in material compliance with the provisions of ERISA, the Code, and any other
applicable federal or state laws; (iv) each Plan (other than a Multiemployer
Plan) that is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS or an application for such a
letter is currently being processed by the IRS with respect thereto and, to the
best knowledge of the Credit Parties, nothing has occurred that would prevent,
or cause the loss of, such qualification, and (v) no lien in favor of the PBGC
or a Plan has arisen or is reasonably likely to arise on account of any Plan.
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(b) The actuarial present value of all "benefit liabilities" (as defined in
Section 4001(a)(16) of ERISA), whether or not vested, under each Single Employer
Plan, as of the last annual valuation date prior to the date on which this
representation is made or deemed made (determined, in each case, in accordance
with Financial Accounting Standards Board Statement No. 87, utilizing the
actuarial assumptions used in such Plan's most recent actuarial valuation
report), did not exceed as of such valuation date the fair market value of the
assets of such Plan allocated to such accrued liabilities.
(c) No member of the Consolidated Group nor any ERISA Affiliate has
incurred, or, to the best knowledge of the Credit Parties, could be reasonably
expected to incur, any liability under Title IV of ERISA with respect to any
Single Employer Plan, or any withdrawal liability under ERISA to any
Multiemployer Plan or Multiple Employer Plan. No member of the Consolidated
Group nor any ERISA Affiliate would become subject to any withdrawal liability
under ERISA if any member of the Consolidated Group or any ERISA Affiliate were
to withdraw completely from all Multiemployer Plans and Multiple Employer Plans
as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No member of the Consolidated Group nor
any ERISA Affiliate has received any notification that any Multiemployer Plan is
in reorganization (within the meaning of Section 4241 of ERISA), is insolvent
(within the meaning of Section 4245 of ERISA), or has been terminated (within
the meaning of Title IV of ERISA), and no Multiemployer Plan is, to the best
knowledge of the Credit Parties, reasonably expected to be in reorganization,
insolvent, or terminated. No member of the Consolidated Group nor any ERISA
Affiliate has engaged in a transaction that could be subject to Sections 4069 or
4212(c) of ERISA.
(d) No prohibited transaction (within the meaning of Section 406 of ERISA
or Section 4975 of the Code) or breach of fiduciary responsibility has occurred
with respect to a Plan that has subjected or may subject any member of the
Consolidated Group or any ERISA Affiliate to any liability under Sections 406,
409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which any member of the Consolidated
Group or any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability. There are no pending, or to the best knowledge of
the Credit Parties, threatened claims, actions, or lawsuits, or action by any
Governmental Authority, with respect to any Plan.
(e) No member of the Consolidated Group nor any ERISA Affiliate has any
material liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards Board
Statement No. 106. Each Plan that is a welfare plan (as defined in Section 3(1)
of ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Code apply
has been administered in compliance in all material respects with such sections.
5.9 Governmental Regulations, Etc.
(a) No part of the proceeds of the Loan hereunder will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin stock" within
the meaning of Regulation U, or for the purpose of purchasing or carrying or
trading in any securities. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and
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each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U. No indebtedness
being reduced or retired out of the proceeds of the Loan hereunder was or will
be incurred for the purpose of purchasing or carrying any margin stock within
the meaning of Regulation U or any "margin security" within the meaning of
Regulation T. "Margin stock" within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the Borrower
and its Subsidiaries. Neither the execution and delivery hereof by the Borrower,
nor the performance by it of any of the transactions contemplated by this Credit
Agreement (including, without limitation, the direct or indirect use of the
proceeds of the Loan) will violate or result in a violation of the Securities
Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, or
regulations issued pursuant thereto, or Regulation T, U, or X.
(b) None of the Credit Parties is (i) an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as amended,
and is not controlled by such a company, or (ii) a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
5.10 Subsidiaries.
As of the Effective Date only, Schedule 5.10 constitutes a list of all the
Subsidiaries of the Credit Parties that are required to be disclosed in the
Borrower's filings with the Securities and Exchange Commission pursuant to
Regulation S-K as of such date (including a list of the Material Domestic
Subsidiaries of the Borrower as of such date), the jurisdiction of their
incorporation and the direct or indirect ownership interest of the Borrower
therein.
5.11 Purpose of Term Loan.
The Term Loan will be used (a) to refinance Indebtedness, (b) to provide
general working capital, or (c) for other general corporate purposes.
5.12 Compliance with Laws; Contractual Obligations.
Each Credit Party and each Significant Subsidiary is in compliance with all
Requirements of Law, except to the extent that the failure to comply therewith
would not, in the aggregate, reasonably be expected to have a Material Adverse
Effect. None of the Credit Parties is in default under or with respect to any of
its contractual obligations in any respect that could reasonably be expected to
have a Material Adverse Effect.
5.13 Accuracy and Completeness of Information.
All factual information heretofore, contemporaneously or hereafter
furnished by or on behalf of the Credit Parties in writing to the Administrative
Agent or any Lender for purposes of or in connection with this Credit Agreement
or any other Credit Document, or any transaction contemplated hereby or thereby,
is or will be true and accurate in all material respects as of the date stated
therein and not incomplete by omitting to state any material fact necessary to
make
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such information not misleading. There is no fact now known to any of the Credit
Parties that has, or could reasonably be expected to have, a Material Adverse
Effect which fact has not been set forth herein, in the financial statements of
the Credit Parties furnished to the Administrative Agent and/or the Lenders, or
in any certificate, opinion, or other written statement made or furnished by the
Credit Parties to the Administrative Agent, or the Lenders.
5.14 Environmental Matters.
(a) Except (i) as set forth on Schedule 5.14 or (ii) as otherwise disclosed
in the audited financial statements delivered pursuant to Section 6.1(a), to the
knowledge of the Credit Parties or except where such violation or liability
could not reasonably be expected to have a Material Adverse Effect, the
facilities and properties owned, leased, or operated by any of the Credit
Parties and the Significant Subsidiaries (the "Properties") do not contain any
Materials of Environmental Concern in amounts or concentrations that (i)
constitute a violation of, or (ii) have resulted in liability under, any
Environmental Law.
(b) Except (i) as set forth on Schedule 5.14 or (ii) as otherwise disclosed
in the audited financial statements delivered pursuant to Section 6.1(a), to the
knowledge of the Credit Parties or except where such violation could not
reasonably be expected to have a Material Adverse Effect, the Properties and all
operations of the Credit Parties and the Significant Subsidiaries at the
Properties are in compliance, and have in the last five years been in
compliance, in all material respects with all applicable Environmental Laws, and
there is no contamination at or under the Properties or violation of any
Environmental Law with respect to the Properties or the business operated by any
of the Credit Parties (the "Business").
(c) Except (i) as set forth on Schedule 5.14 or (ii) as otherwise disclosed
in the audited financial statements delivered pursuant to Section 6.1(a), none
of the Credit Parties or any Significant Subsidiary has received any written
notice of violation, alleged violation, non-compliance, liability, or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the Business, nor does any of the Credit
Parties have knowledge of any such threatened notice.
(d) Except (i) as set forth on Schedule 5.14 or (ii) as otherwise disclosed
in the audited financial statements delivered pursuant to Section 6.1(a), to the
knowledge of the Credit Parties or except where such violation or liability
could not reasonably be expected to have a Material Adverse Effect, Materials of
Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location that has given rise
to liability under any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored, or disposed of at, on or
under any of the Properties in violation of, or in a manner that has given rise
to liability under, any applicable Environmental Law.
(e) Except (i) as set forth on Schedule 5.14 or (ii) as could not
reasonably be expected to have a Material Adverse Effect or (iii) as otherwise
disclosed in the audited financial statements delivered pursuant to Section
6.1(a), no judicial proceeding or governmental or administrative action (other
than those not legally disclosable by the Credit Parties (that in any event
could not be reasonably expected to have a Material Adverse Effect) unless such
restriction
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was imposed at the request of the Credit Parties) is pending or, to the
knowledge of any Credit Party, threatened, under any Environmental Law to which
any of the Credit Parties is or will be named as a party with respect to the
Properties or the Business, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other administrative
or judicial directives outstanding under any Environmental Law with respect to
the Properties or the Business.
(f) Except (i) as set forth on Schedule 5.14 or (ii) as otherwise disclosed
in the audited financial statements delivered pursuant to Section 6.1(a), to the
knowledge of the Credit Parties or except where such violation or liability
could not reasonably be expected to have a Material Adverse Effect, there has
been no release or threat of release of Materials of Environmental Concern at or
from the Properties, or arising from or related to the operations of any of the
Credit Parties in connection with the Properties or otherwise in connection with
the Business, in violation of or in amounts or in a manner requiring remediation
under Environmental Laws.
SECTION 6
AFFIRMATIVE COVENANTS
The Credit Parties covenant and agree that on the Effective Date, and so
long as this Credit Agreement is in effect and until the Commitments have been
terminated, the Term Loan does not remain outstanding and all amounts owing
hereunder or under any other Credit Document or in connection herewith or
therewith have been paid in full, the Borrower shall and shall cause each
Material Domestic Subsidiary and each Significant Subsidiary (other than in the
case of Section 6.1, 6.2 and 6.3) to:
6.1 Financial Statements.
Furnish, or cause to be furnished, to the Administrative Agent for
distribution to the Lenders:
(a) Audited Financial Statements. As soon as available, but in any event
within ninety (90) days after the end of each fiscal year, an audited
consolidated balance sheet of the Borrower and its subsidiaries as of the end of
the fiscal year and the related consolidated statements of income, retained
earnings, shareholders' equity and cash flows for such fiscal year, audited by
an independent certified public accounting firm of nationally recognized
standing, setting forth in each case in comparative form the figures for the
previous year, reported without a "going concern" or like qualification or
exception, or qualification indicating that the scope of the audit was
inadequate to permit such independent certified public accountants to certify
such financial statements without such qualification.
(b) Unaudited Financial Statements. As soon as available, but in any event
within forty-five (45) days after the end of each of the first three (3) fiscal
quarters, an unaudited consolidated balance sheet of the Borrower and its
subsidiaries as of the end of the quarter and related unaudited consolidated
statements of income, retained earnings, shareholders' equity, and
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cash flows for such quarterly period and for the fiscal year to date; in each
case setting forth in comparative form the consolidated figures for the
corresponding period or periods of the preceding fiscal year or the portion of
the fiscal year ending with such period, as applicable, in each case subject to
normal recurring year-end audit adjustments.
All such financial statements shall be complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments) and shall be prepared in reasonable detail and, in
the case of the annual and quarterly financial statements provided in accordance
with subsections (a) and (b) above, in accordance with GAAP applied consistently
throughout the periods reflected therein and further accompanied by a
description of, and an estimation of the effect on the financial statements on
account of, a change in the application of accounting principles as provided in
Section 1.3.
6.2 Certificates; Other Information.
Furnish, or cause to be furnished, to the Administrative Agent for
distribution to the Lenders:
(a) Accountant's Certificate and Reports. Concurrently with the delivery of
the financial statements referred to in subsection 6.1(a) above, a certificate
of the independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor no
knowledge was obtained of any Default or Event of Default, except as specified
in such certificate.
(b) Officer's Certificate. Concurrently with the delivery of the financial
statements referred to in Sections 6.1(a) and 6.1(b) above, a certificate of a
Responsible Officer stating that, to the best of such Responsible Officer's
knowledge and belief, (i) the financial statements fairly present in all
material respects the financial condition of the parties covered by such
financial statements, (ii) during such period each Credit Party has observed or
performed in all material respects its covenants and other agreements hereunder
and under the other Credit Documents, and satisfied in all material respects the
conditions contained in this Credit Agreement to be observed, performed, or
satisfied by it (except to the extent waived in accordance with the provisions
hereof), and (iii) such Responsible Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate. Such
certificate shall include the calculations required to indicate compliance with
Section 6.7. A form of Officer's Certificate is attached as Schedule 6.2(b).
(c) Public Information. Within thirty days after the same are sent, copies
of all reports (other than those otherwise provided pursuant to subsection 6.1)
and other financial information that any Credit Party sends to its public
stockholders, and within thirty days after the same are filed, copies of all
financial statements and non-confidential reports that any Credit Party may make
to, or file with, the Securities and Exchange Commission or any successor or
analogous United States Governmental Authority.
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(d) Other Information. Promptly, such additional financial and other
information as the Administrative Agent, at the request of any Lender, may from
time to time reasonably request.
6.3 Notices.
Give notice to the Administrative Agent that shall promptly transmit such
notice to each Lender of:
(a) Defaults. Promptly (but in any event within three (3) Business Days)
after any Credit Party knows thereof, the occurrence of any Default or Event of
Default.
(b) Legal Proceedings. Promptly following the receipt by any Credit Party
of written notification relating thereto, any litigation, or any investigation
or proceeding (including without limitation, any environmental proceeding) known
to a Credit Party relating to a Credit Party or any Significant Subsidiary, or
any material development in respect thereof, affecting the Borrower or any
Significant Subsidiary that, if adversely determined, would reasonably be
expected to have a Material Adverse Effect.
(c) ERISA. Upon a member of the Consolidated Group or any ERISA Affiliate
obtaining knowledge thereof, (i) any event or condition that constitutes, or
might reasonably lead to, an ERISA Event, except an ERISA Event that would not
be reasonably likely to have a Material Adverse Effect; (ii) with respect to any
Multiemployer Plan, the receipt of notice as prescribed in ERISA or otherwise of
any withdrawal liability assessed against any ERISA Affiliate, or of a
determination that any Multiemployer Plan is in reorganization or insolvent
(both within the meaning of Title IV of ERISA); (iii) the failure to make full
payment on or before the due date (including extensions) thereof of all amounts
that a member of the Consolidated Group or any ERISA Affiliate is required to
contribute to each Plan pursuant to its terms and as required to meet the
minimum funding standards set forth in ERISA and the Code with respect thereto,
except in the event that such failure would not be reasonably likely to have a
Material Adverse Effect; or (iv) any change in the funding status of any Plan
that could reasonably be expected to have a Material Adverse Effect, in each
case, together with a description of any such event or condition or a copy of
any such notice and a statement by the chief financial officer of the Borrower
briefly setting forth the details regarding such event, condition, or notice,
and the action, if any, that has been or is being taken or is proposed to be
taken by the Borrower with respect thereto. Promptly upon request, the Borrower,
any Material Domestic Subsidiary and any Significant Subsidiary shall furnish
the Administrative Agent and the Lenders with such additional information
concerning any Plan as may be reasonably requested, including, but not limited
to, copies of the most recent annual report/return (Form 5500 series), as well
as all schedules and attachments thereto required to be filed with the
Department of Labor and/or the Internal Revenue Service pursuant to ERISA and
the Code, respectively, for such "plan year" (within the meaning of Section
3(39) of ERISA).
(d) Other. Promptly, any other development or event that a Responsible
Officer of the Borrower determines is reasonably likely to have a Material
Adverse Effect.
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Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto.
6.4 Maintenance of Existence and Compliance with Law.
(a) Preserve, renew, and keep in full force and effect its corporate
existence and take all reasonable action to maintain all rights, privileges,
licenses, and franchises necessary or required in the normal conduct of its
business.
(b) Comply with all Requirements of Law (including, without limitation, all
Environmental Laws and ERISA matters) applicable to it except to the extent that
failure to comply therewith would not, in the aggregate, have a Material Adverse
Effect.
(c) Fully perform and satisfy all of its obligations under all of its
contractual obligations except to the extent that failure to perform and satisfy
such obligations would not, in the aggregate, have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance.
Keep all material property useful and necessary in its business in
reasonably good working order and condition (ordinary wear and tear excepted);
maintain with financially sound and reputable insurance companies casualty,
liability, and such other insurance (that may include plans of self-insurance)
with such coverage and deductibles, and in such amounts as may be consistent
with prudent business practice and in any event consistent with normal industry
practice; and furnish to the Administrative Agent, upon written request, full
information as to the insurance carried.
6.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true, and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its businesses and activities; and
permit, during regular business hours and upon reasonable notice by the
Administrative Agent, the Administrative Agent to visit and inspect any of its
properties and examine and make abstracts (including photocopies) from any of
its books and records (other than materials protected by the attorney-client,
work product, or other privilege and materials that the Credit Parties may not
disclose without violation of a confidentiality obligation binding upon a Credit
Party or any Significant Subsidiary) at any reasonable time, and to discuss the
business, operations, properties, and financial and other condition of the
members of the Consolidated Group with officers and employees of the members of
the Consolidated Group and with their independent certified public accountants.
The cost of the inspection referred to in the preceding sentence shall be for
the account of the Lenders unless an Event of Default has occurred and is
continuing, in which case the cost of such inspection shall be for the account
of the Borrower.
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6.7 Financial Covenants.
(a) Consolidated Tangible Net Worth. Maintain Consolidated Tangible Net
Worth, as of the end of each fiscal quarter, of not less than the following:
Period Amount
------ ------
From the Effective Date through and including $375 million
June 29, 2005
From June 30, 2005, and thereafter $400 million
(b) Consolidated Working Capital. Maintain, as of the end of each fiscal
quarter, Consolidated Working Capital of not less than $150 million.
(c) Consolidated Leverage Ratio. Maintain, as of the end of each fiscal
quarter, a Consolidated Leverage Ratio of not greater than sixty percent (60%).
(d) Consolidated Average Total Indebtedness. As of the end of each fiscal
quarter, the ratio of (i) Consolidated Average Total Indebtedness minus
Consolidated Average Cash on Hand minus the amount of Committed Inventory plus
Customer Advances and Deposits to (ii) Consolidated EBITDA shall not be greater
than 3.00 to 1.00.
6.8 Use of Proceeds.
Use the Loan solely for the purposes provided in Section 5.11.
6.9 Additional Subsidiary Guarantors.
Cause each of the Borrower's Material Domestic Subsidiaries that is not a
party to this Credit Agreement, whether newly formed, after acquired, or
otherwise existing, to promptly become a "Subsidiary Guarantor" hereunder by way
of execution of a Joinder Agreement.
6.10 Payment of Obligations.
Pay, discharge, or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, in accordance with industry and
historical company practice (subject, where applicable, to specified grace
periods) all its obligations (including, without limitation, all taxes) of
whatever nature and any additional costs that are imposed as a result of any
failure to so pay, discharge, or otherwise satisfy such obligations, except when
the amount or validity of such obligations and costs is currently being
contested in good faith by appropriate proceedings and reserves, if applicable,
in conformity with GAAP, with respect thereto have been provided on the books of
the Borrower or its Subsidiaries, as the case may be, and except to the extent
that failure to pay, discharge, or otherwise satisfy such obligations would not
reasonably be expected to have Material Adverse Effect.
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SECTION 7
NEGATIVE COVENANTS
The Credit Parties covenant and agree that on the Effective Date, and so
long as this Credit Agreement is in effect and until the Commitments have been
terminated, the Term Loan does not remain outstanding and all amounts owing
hereunder or under any other Credit Document or in connection herewith or
therewith have been paid in full, the Borrower shall not and shall not permit
any Material Domestic Subsidiary or any Significant Subsidiary to:
7.1 [Intentionally Omitted.]
7.2 Liens.
Contract, create, incur, assume, or permit to exist any Lien with respect
to any of its respective property or assets of any kind (whether real or
personal, tangible or intangible), whether now owned or hereafter acquired,
except for Permitted Liens.
7.3 Consolidation, Merger, Sale, or Purchase of Assets, Capital
Expenditures, etc.
Enter into a transaction of merger or consolidation with any Person, firm,
joint venture, or corporation, or sell, lease, or otherwise dispose of all or
substantially all of its assets, except (i) in the ordinary course of its
business or (ii) a Significant Subsidiary may be merged or consolidated with, or
may sell, lease, or dispose of all or substantially all of its assets to, (a) a
wholly-owned Material Domestic Subsidiary or a wholly-owned Significant
Subsidiary of the Borrower, (b) any other corporation that is or will upon the
consummation of such merger or consolidation be a Material Domestic Subsidiary
or Significant Subsidiary of which not less than eighty percent (80%) of the
capital stock is owned directly or indirectly by the Borrower, or (c) any other
corporation may be merged or consolidated into the Borrower; provided in the
case of any such merger or consolidation with the Borrower, the Borrower is the
surviving corporation and the management of the Borrower continues as the
management of the surviving corporation; provided, further, that in any event
such merger or consolidation does not violate any other provision of this Credit
Agreement and upon the effective date of the merger or consolidation there
exists no Default or Event of Default hereunder. Notwithstanding the foregoing,
a Significant Subsidiary may be merged into or with any other Person, or all or
substantially all of a Significant Subsidiary's assets may be transferred to any
other Person, if such merger, consolidation, or transfer does not violate any
other provision of this Credit Agreement and immediately before and immediately
after such merger, consolidation, or transfer is consummated (i) there shall
exist no Default or Event of Default, (ii) no Material Adverse Effect shall have
occurred, and (iii) the representations and warranties contained in Section 5 of
this Credit Agreement shall, except to the extent that they relate solely to an
earlier date, be true with the same effect as though such representations and
warranties had been made at such time.
7.4 Sale Leasebacks.
Enter into sale and lease-back transactions relating to the same or similar
Property for a term of more than three (3) years, unless the sum of (i) the
aggregate amount of such
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transactions, measured using in each case the greater of (a) the fair market
value of the assets sold or (b) the selling price, sold after December 31, 2002,
and (ii) the aggregate principal amount then outstanding secured by liens
described in Section 7.2, does not exceed Fifty Million Dollars ($50,000,000).
7.5 Sale of Significant Subsidiaries.
Notwithstanding anything to the contrary in Section 7.4, the Borrower shall
have the right to sell or otherwise dispose of any Subsidiary (or all or
substantially all of the assets thereof); provided that such sale or other
disposition does not violate any other provision of this Credit Agreement and
immediately before and immediately after such sale or other disposition (i)
there shall exist no Default or Event of Default, (ii) no Material Adverse
Effect shall result therefrom, and (iii) the representations and warranties
contained in Section 5 of this Credit Agreement shall, except to the extent that
they relate solely to an earlier date, be true with the same effect as though
such representations and warranties had been made at such time.
7.6 Transactions with Affiliates.
Enter into any material transaction or series of transactions, whether or
not in the ordinary course of business, with any of its officers, directors, or
Affiliates, except:
(a) transactions on terms and conditions that, in the reasonable
opinion of the Borrower, are not less favorable than could be obtained in a
comparable arm's-length transaction with an unrelated third party;
(b) transactions between or among the Borrower and its Subsidiaries
not involving any other Affiliate; and
(c) transactions pursuant to any agreement in existence prior to the
Effective Date, or any amendment thereto, provided the terms of such
amendment are not less favorable to the Borrower or its Subsidiaries than
the terms of the relevant agreement prior to such amendment.
A transaction or series of transactions involving aggregate consideration
of less than $10,000,000 will not be considered material for the purposes of
this Section 7.6. This Section 7.6 shall not prohibit the declaration or payment
of any dividends or distributions by the Borrower to its shareholders generally,
or to holders of a particular class of shares.
7.7 Investments.
The Borrower shall not, and shall not permit any Subsidiary to, directly or
indirectly, make any Investment, or enter into any agreement to make any
Investment, except as are consistent with the Borrower's past practices and in
connection with the Borrower's existing lines of business.
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SECTION 8
EVENTS OF DEFAULT
8.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the following
specified events (each an "Event of Default"):
(a) Payment.
(i) Default in the payment when due of any principal of the Term Loan;
or
(ii) Default, and such defaults shall continue for five (5) or more
Business Days, in the payment when due of any interest on the Term Loan or
of any Fees or other amounts owing hereunder, under any of the other Credit
Documents or in connection herewith or therewith; or
(b) Representations. Any representation, warranty, or statement made in any
of the Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue in any
material respect on the date as of which it was made or deemed made; or
(c) Covenants.
(i) Default in the due performance or observance of any term,
covenant, or agreement contained in Section 6.3(a), 6.7, 6.8, or 7.2
through 7.7, inclusive; or
(ii) Default in the due performance or observance by it of any term,
covenant, or agreement (other than those referred to in subsections (a),
(b), or (c)(i) of this Section 8.1) contained in this Credit Agreement and
such default shall continue unremedied for a period of at least 30 days
after the earlier of (A) an officer of a Credit Party becoming aware of
such default or (B) notice thereof to the Borrower by the Administrative
Agent; or
(d) Other Credit Documents. Any material provision of a Credit Document
shall fail to be in full force and effect; or
(e) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to a
Credit Party or a Significant Subsidiary; or
(f) Defaults under Other Agreements.
(i) The occurrence of an Event of Default under the Revolving Credit
Agreement (as such term is defined therein); or
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(ii) Any default made in the payment (beyond the applicable grace
period with respect thereto, if any) in respect of any Indebtedness of any
Credit Party or any Significant Subsidiary in an aggregate principal amount
of Twenty Million Dollars ($20,000,000), or more; provided that
Indebtedness of a Significant Subsidiary organized under the laws of a
jurisdiction other than the United States of America or a political
subdivision thereof shall not be included in the calculation of such Twenty
Million Dollars ($20,000,000), so long as:
(A) the obligation to make such payment is being actively
contested in good faith and such Significant Subsidiary is holding in
escrow an amount of cash equal to or greater than the disputed payment;
(B) the Borrower or any other Credit Party or such Significant
Subsidiary is unable to realize the benefits of ownership of such foreign
Subsidiary because of war, civil commotion, insurrection, revolution, riot,
confiscation, or force majeure actions caused by a government or actions
against a government;
(C) the Borrower or any other Credit Party or Significant
Subsidiary has a colorable claim in the nature of common law, equitable, or
statutory set-off against the Person to whom such Indebtedness is owing; or
(D) the aggregate amount of all such obligations does not exceed
Thirty Million Dollars ($30,000,000); or
(iii) The maturity of any Indebtedness of any Credit Party or any
Significant Subsidiary in an aggregate principal amount of Twenty Million
Dollars ($20,000,000) or more shall be accelerated; provided that
Indebtedness of a Significant Subsidiary organized under the laws of a
jurisdiction other than the United States of America or a political
subdivision thereof shall not be included in the calculation of such Twenty
Million Dollars ($20,000,000) so long as:
(A) the obligation to make such payment is being actively
contested in good faith and such Significant Subsidiary is holding in
escrow an amount of cash equal to or greater than the disputed payment;
(B) the Borrower or any other Credit Party is unable to realize
the benefits of ownership of such foreign Subsidiary because of war, civil
commotion, insurrection, revolution, riot, confiscation, or force majeure
actions caused by a government or actions against a government,
(C) such Significant Subsidiary has a colorable claim in the
nature of common law, equitable, or statutory set-off against the Person to
whom such Indebtedness is owing, or
(D) the aggregate amount of all such obligations under this
clause 8.1(f)(iii) does not exceed Thirty Million Dollars ($30,000,000); or
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(iv) Any default (beyond any applicable grace period with respect
thereto) made in any payment of an amount in excess of Five Million Dollars
($5,000,000) in respect of any Hedging Agreement between the Borrower and
any Lender, or any Affiliate of a Lender; or
(g) Judgments. Any Credit Party or any Significant Subsidiary shall fail
within thirty (30) days of the date due and payable to pay, bond, or otherwise
discharge any judgment, settlement, or order for the payment of money which
judgment, settlement, or order, when aggregated with all other such judgments,
settlements, or orders due and unpaid at such time, exceeds Twenty Million
Dollars ($20,000,000) (in excess of insurance or other indemnity reasonably
acceptable to the Required Lenders), and that is not stayed on appeal (or for
which no motion for stay is pending) or is not otherwise being executed;
provided that judgments resulting from the failure of any Credit Party or any
Significant Subsidiary to honor its obligations in respect of a guaranty of
obligations of a subsidiary organized under the laws of a jurisdiction other
than the United States of America or a political subdivision thereof shall not
be included in the calculation of such Twenty Million Dollars ($20,000,000) if:
(i) the Credit Party or such Significant Subsidiary is unable to
realize the benefits of ownership of such foreign subsidiary because of
war, civil commotion, insurrection, revolution, riot, confiscation, or
force majeure actions caused by a government or actions against a
government,
(ii) the Credit Party or such Significant Subsidiary has a colorable
claim in the nature of common law, equitable, or statutory set-off against
the Person in favor of which such judgment was entered, and
(iii) the aggregate amount of all such obligations does not exceed
Thirty Million Dollars ($30,000,000); or
(h) ERISA. Any of the following events or conditions, if such event or
condition could reasonably be expected to have a Material Adverse Effect: (1)
any "accumulated funding deficiency", as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, shall exist with
respect to any Plan, or any lien shall arise on the assets of a member of the
Consolidated Group or any ERISA Affiliate in favor of the PBGC or a Plan; (2) an
ERISA Event shall occur with respect to a Single Employer Plan, that is, in the
reasonable opinion of the Administrative Agent, likely to result in the
termination of such Plan for purposes of Title IV of ERISA; (3) an ERISA Event
shall occur with respect to a Multiemployer Plan or Multiple Employer Plan, that
is, in the reasonable opinion of the Administrative Agent, likely to result in
(i) the termination of such Plan for purposes of Title IV of ERISA, or (ii) a
member of the Consolidated Group or any ERISA Affiliate incurring any liability
in connection with a withdrawal from, reorganization of (within the meaning of
Section 4241 of ERISA), or insolvency (within the meaning of Section 4245 of
ERISA) of such Plan; (4) any prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur that may subject a member of the Consolidated Group
or any ERISA Affiliate to any liability under Sections 406, 409, 502(i), or
502(l) of ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which a member of the Consolidated Group or any ERISA
Affiliate has agreed or is required to
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indemnify any person against any such liability; or (5) a member of the
Consolidated Group or any ERISA Affiliate fails to pay when due, after the
expiration of any applicable grace period, any installment payment with respect
to its withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan; or
(i) Guaranty. Any Guaranty required hereby or any provision thereof shall
cease to be in full force and effect at the time required or any Guarantor or
any Person acting by or on behalf of any Guarantor shall deny or disaffirm any
Guarantor's obligations under the Guaranty; or
(j) Change of Control. There shall occur a Change of Control; or
(k) Credit Documents. Any Credit Document shall fail to be in full force
and effect or to give the Administrative Agent and/or the Lenders the rights,
powers, and privileges purported to be created thereby or any Credit Party or
any Person acting by or on behalf of any Credit Party shall deny or disaffirm
any Credit Party's obligations or the Administrative Agent's and/or the Lenders'
rights under any Credit Document (except as such documents may be terminated or
no longer in force and effect in accordance with the terms thereof, other than
those indemnities and provisions which by their terms shall survive).
8.2 Acceleration; Remedies.
Upon the occurrence and during the continuance of an Event of Default, the
Administrative Agent may, or upon the request and direction of the Required
Lenders shall, by written notice to the Borrower take any of the following
actions:
(i) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(ii) Acceleration. Declare the unpaid principal of and any accrued
interest in respect of the Loan and any and all other indebtedness or
obligations of any and every kind owing by any Credit Party to the
Administrative Agent and/or any of the Lenders hereunder to be due,
whereupon the same shall be immediately due and payable without
presentment, demand, protest, or other notice of any kind, all of which are
hereby waived by each Credit Party.
(iii) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents, whether at law or in
equity.
Notwithstanding the foregoing, if an Event of Default specified in Section
8.1(e) shall occur, then the Commitments shall automatically terminate and the
Loan, all accrued interest in respect thereof, all accrued and unpaid Fees, and
other indebtedness or obligations owing to the Administrative Agent or any of
the Lenders hereunder automatically shall immediately become due and payable
without presentment, demand, protest, or the giving of any notice or other
action by the Administrative Agent or the Lenders, all of which are hereby
waived by the Borrower.
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SECTION 9
AGENCY PROVISIONS
9.1 Appointment.
Each Lender hereby designates and appoints Wachovia as administrative agent
of such Lender to act as specified herein and in the other Credit Documents, and
each such Lender hereby authorizes the Administrative Agent as the
Administrative Agent for such Lender, to take such action on its behalf under
the provisions of this Credit Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated by the
terms hereof and of the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Each Lender further directs and authorizes
the Administrative Agent to execute releases (or similar agreements) to give
effect to the provisions of this Credit Agreement and the other Credit
Documents. Notwithstanding any provision to the contrary elsewhere herein and in
the other Credit 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
Credit Agreement or any of the other Credit Documents, or shall otherwise exist
against the Administrative Agent. The provisions of this Section are solely for
the benefit of the Administrative Agent and the Lenders and the Borrower shall
not have any rights as a third party beneficiary of the provisions hereof. In
performing its functions and duties under this Credit Agreement and the other
Credit Documents, the Administrative Agent shall act solely as Administrative
Agent of the Lenders and does not assume and shall not be deemed to have assumed
any obligation or relationship of agency or trust with or for the Borrower or
any of its affiliates.
9.2 Delegation of Duties.
The Administrative Agent may execute any of its duties hereunder or under
the other Credit 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 it with reasonable
care.
9.3 Exculpatory Provisions.
The Administrative Agent and its officers, directors, employees, agents,
attorneys-in-fact, or affiliates shall not be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person in good faith under or in
connection herewith or in connection with any of the other Credit Documents
(except for its or such Person's own gross negligence or willful misconduct), or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Credit Party contained
herein or in any of the other Credit Documents or in any certificate, report,
document, financial statement, or other written or oral statement referred to or
provided for in, or received by the Administrative Agent under or in connection
herewith or in connection with the other Credit Documents, or enforceability or
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sufficiency therefor of any of the other Credit Documents, or for any failure of
any Credit Party to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be responsible to any Lender for the
effectiveness, genuineness, validity, enforceability, collectibility, or
sufficiency of this Credit Agreement, or any of the other Credit Documents or
for any representations, warranties, recitals, or statements made herein or
therein or made by any Credit Party in any written or oral statement or in any
financial or other statements, instruments, reports, certificates, or any other
documents in connection herewith or therewith furnished or made by the
Administrative Agent to the Lenders or by or on behalf of any Credit Party to
the Administrative Agent or any Lender or be required to ascertain or inquire as
to the performance or observance of any of the terms, conditions, provisions,
covenants, or agreements contained herein or therein or as to the use of the
proceeds of the Loan or of the existence or possible existence of any Default or
Event of Default or to inspect the properties, books, or records of any Credit
Party or any of its affiliates.
9.4 Reliance on Communications.
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 any of the Credit Parties,
independent accountants and other experts selected by the Administrative Agent
with reasonable care). The Administrative Agent may deem and treat the Lenders
as the owners of their respective interests hereunder for all purposes unless a
written notice of assignment, negotiation, or transfer thereof shall have been
filed with the Administrative Agent in accordance with Section 10.3(b) hereof.
The Administrative Agent shall be fully justified in failing or refusing to take
any action under this Credit Agreement or under any of the other Credit
Documents unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or under any of the other Credit Documents in
accordance with a request of the Required Lenders (or to the extent specifically
provided in Section 10.6, all the Lenders) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders
(including their successors and assigns).
9.5 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 the
Administrative Agent has received notice from a Lender or any Credit Party
referring to the Credit Document, 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, the Administrative Agent shall give
prompt 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.
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9.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that each of the Administrative Agent
and its officers, directors, employees, agents, attorneys-in-fact, or affiliates
has not made any representations or warranties to it and that no act by the
Administrative Agent or any affiliate thereof hereinafter taken, including any
review of the affairs of the Borrower or the other Credit Parties or any of
their respective affiliates, 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, assets, operations, property, financial, and
other conditions, prospects, and creditworthiness of the Borrower and the other
Credit Parties or their respective affiliates and made its own decision to make
its Loan hereunder and enter into this Credit 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 Credit Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, assets, operations, property, financial, and
other conditions, prospects, and creditworthiness of the Borrower and the other
Credit Parties and their respective affiliates. Except for notices, reports, and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, assets, property, financial, or other
conditions, prospects, or creditworthiness of the Borrower or any other Credit
Party or any of their respective affiliates that may come into the possession of
the Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact, or affiliates.
9.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its capacity as
such (to the extent not reimbursed by the Credit Parties and without limiting
the obligation of the Credit Parties to do so), ratably according to their
respective Commitments (or if the Commitments have expired or been terminated,
in accordance with the respective principal amount of the outstanding Loan and
Participation Interests of the Lenders), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements of any kind whatsoever that may at any time
(including without limitation at any time following the final payment of all of
the obligations of the Credit Parties hereunder and under the other Credit
Documents) be imposed on, incurred by, or asserted against the Administrative
Agent in its capacity as such in any way relating to or arising out of this
Credit Agreement or the other Credit 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
resulting from the gross negligence or willful misconduct of the Administrative
Agent. If any indemnity
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furnished to the Administrative Agent for any purpose shall, in the opinion of
the Administrative Agent, be insufficient or become impaired, the Administrative
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished. The
agreements in this Section shall survive the repayment of the Loan and other
obligations under the Credit Documents and the termination of the Commitments
hereunder.
9.8 Administrative Agent in its Individual Capacity.
The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower,
its Subsidiaries, or their affiliates as though the Administrative Agent were
not the Administrative Agent hereunder. With respect to the Loan made by the
Administrative Agent hereunder and all obligations of the Credit Parties
hereunder and under the other Credit Documents, the Administrative Agent shall
have the same rights and powers under this Credit Agreement as any Lender and
may exercise the same as though it were not the Administrative Agent, and the
terms "Lender" and "Lenders" shall include the Administrative Agent in its
individual capacity.
9.9 Successor Administrative Agent.
The Administrative Agent may, at any time, resign upon 20 Business Days'
written notice to the Lenders and the Borrower, and may be removed, upon show of
cause, by the Required Lenders upon 30 days' written notice to the
Administrative Agent. Upon any such resignation or removal, the Required Lenders
and the Borrower shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the notice of resignation or notice of removal, as appropriate, then the
retiring Administrative Agent shall select a successor Administrative Agent
provided such successor is a Lender hereunder or a commercial bank organized
under the laws of the United States of America or of any State thereof and has a
combined capital and surplus of at least $400,000,000. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges, and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations as Administrative Agent, as appropriate, under this Credit Agreement
and the other Credit Documents and the provisions of this Section 9.9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Credit Agreement.
SECTION 10
MISCELLANEOUS
10.1 Notices.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted via
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telecopy (or other facsimile device) to the number set out below, (iii) the day
following the day on which the same has been delivered prepaid to a reputable
national overnight air courier service, or (iv) the third Business Day following
the day on which the same is sent by certified or registered mail, postage
prepaid, in each case to the respective parties at the address, in the case of
the Credit Parties and the Administrative Agent, set forth below, and, in the
case of the Lenders, set forth on Schedule 2.3(a), or at such other address as
such party may specify by written notice to the other parties hereto:
if to the Borrower or any other Credit Party:
Universal Corporation
0000 X. Xxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Universal Corporation
0000 X. Xxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, III
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Administrative Agent:
Wachovia Bank, National Association
000 Xxxxx Xxxxxxx Xxxxxx, XX 0760
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Wachovia Bank, National Association
Charlotte Plaza
000 Xxxxx Xxxxxxx Xxxxxx, XX-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Syndication Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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10.2 Right of Set-Off.
In addition to any rights now or hereafter granted under applicable law or
otherwise, and not by way of limitation of any such rights, upon the occurrence
of an Event of Default, each Lender is authorized at any time and from time to
time, without presentment, demand, protest, or other notice of any kind (all of
which rights being hereby expressly waived), to set-off and to appropriate and
apply any and all deposits (general or special) and any other indebtedness at
any time held or owing by such Lender (including, without limitation branches,
agencies, or affiliates of such Lender wherever located) to or for the credit or
the account of the Credit Parties against obligations and liabilities of the
Credit Parties to such Lender hereunder, under the Notes or the other Credit
Documents, irrespective of whether such Lender shall have made any demand
hereunder and although such obligations, liabilities, or claims, or any of them,
may be contingent or unmatured, and any such set-off shall be deemed to have
been made immediately upon the occurrence of an Event of Default even though
such charge is made or entered on the books of such Lender subsequent thereto.
Any Person purchasing a participation in the Loan and Commitments hereunder
pursuant to Section 3.16 or Section 10.3(d) may exercise all rights of set-off
with respect to its participation interest as fully as if such Person were a
Lender hereunder.
10.3 Benefit of Agreement.
(a) Generally. This Credit Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of the
parties hereto; provided that the Borrower and the other Credit Parties may
neither assign nor transfer any of its interests without prior written consent
of the Lenders; provided further that the rights of each Lender to transfer,
assign, or grant participations in its rights and/or obligations hereunder shall
be limited as set forth in this Section 10.3, provided however that nothing
herein shall prevent or prohibit any Lender from (i) pledging its Loan hereunder
to a Federal Reserve Bank or Farm Credit Bank in support of borrowings made by
such Lender from such Federal Reserve Bank or Farm Credit Bank, or (ii) granting
assignments or selling participations in such Lender's Loan and/or Commitments
hereunder to its parent company and/or to any affiliate or Subsidiary of such
Lender.
(b) Assignments. Each Lender may assign all or a portion of its rights and
obligations hereunder, pursuant to an assignment agreement substantially in the
form of Schedule 10.3(b), to (i) any Lender or any affiliate or Subsidiary of a
Lender, or (ii) any other commercial bank, financial institution, or "accredited
investor" (as defined in Regulation D of the Securities and Exchange Commission)
reasonably acceptable to the Administrative Agent (such consent shall not be
unreasonably withheld or delayed) and, so long as no Default or Event of Default
has occurred and is continuing, with the approval of the Borrower (which
approval in the case of a commercial bank or financial institution shall not be
unreasonably withheld or delayed); provided that (i) any such assignment (other
than any assignment to an existing Lender) shall be in a minimum aggregate
amount of $5,000,000 (or, if less, the remaining amount of the Commitment being
assigned by such Lender) of the Commitments and in integral multiples of
$1,000,000 above such amount and (ii) each such assignment shall be of a
constant, not varying, percentage of all such Lender's rights and obligations
under this Credit Agreement.
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Any assignment hereunder shall be effective upon delivery to the Administrative
Agent of written notice of the assignment together with a transfer fee of $3,500
payable to the Administrative Agent for its own account from and after the later
of (i) the effective date specified in the applicable assignment agreement and
(ii) the date of recording of such assignment in the Register pursuant to the
terms of subsection (c) below. The assigning Lender will give prompt notice to
the Administrative Agent and the Borrower of any such assignment. Upon the
effectiveness of any such assignment (and after notice to, and (to the extent
required pursuant to the terms hereof), with the consent of, the Borrower as
provided herein), the assignee shall become a "Lender" for all purposes of this
Credit Agreement and the other Credit Documents and, to the extent of such
assignment, the assigning Lender shall be relieved of its obligations hereunder
to the extent of the Loan and Commitment components being assigned. Along such
lines the Borrower agrees that upon notice of any such assignment, it will
promptly provide to the assigning Lender and to the assignee separate promissory
notes in the amount of their respective interests substantially in the form of
the original Note. By executing and delivering an assignment agreement in
accordance with this Section 10.3(b), the assigning Lender thereunder and the
assignee thereunder shall be deemed to confirm to and agree with each other and
the other parties hereto as follows: (i) such assigning Lender warrants that it
is the legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim; (ii) except as set forth in clause (i) above,
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant hereto or
thereto, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, any of the other Credit Documents
or any other instrument or document furnished pursuant hereto or thereto or the
financial condition of the Credit Parties or any of their respective affiliates
or the performance or observance by the Credit Parties of any of their
respective obligations under this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant hereto or
thereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such assignment agreement; (iv) such assignee confirms
that it has received a copy of this Credit Agreement, the other Credit Documents
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such assignment agreement;
(v) such assignee will independently and without reliance upon the
Administrative Agent, such assigning Lender 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 decisions in taking or not taking action under
this Credit Agreement and the other Credit Documents; (vi) such assignee
appoints and authorizes the Administrative Agent to take such action on its
behalf and to exercise such powers under this Credit Agreement or any other
Credit Document as are delegated to the Administrative Agent by the terms hereof
or thereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all the obligations that by the terms of this Credit Agreement and the other
Credit Documents are required to be performed by it as a Lender (including
without limitation the requirements of Section 3.13).
(c) Maintenance of Register. The Administrative Agent shall maintain at one
of its offices in Charlotte, North Carolina, a copy of each Lender assignment
agreement delivered to it in accordance with the terms of subsection (b) above
and a register for the recordation of the
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identity of the principal amount, type, and Interest Period of each Loan
outstanding hereunder, the names, addresses, and the Commitments of the Lenders
pursuant to the terms hereof from time to time (the "Register"). The
Administrative Agent will make diligent efforts to maintain the accuracy of the
Register and to promptly update the Register from time to time, as necessary.
The entries in the Register shall be conclusive in the absence of manifest error
and the Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Credit Agreement. The Register shall be
available for inspection by the Borrower and each Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Participations. Each Lender may sell, transfer, grant or assign
participations in all or any part of such Lender's interests and obligations
hereunder; provided that (i) such selling Lender shall remain a "Lender" for all
purposes under this Credit Agreement (such selling Lender's obligations under
the Credit Documents remaining unchanged) and the participant shall not
constitute a Lender hereunder, (ii) no such participant shall have, or be
granted, rights to approve any amendment or waiver relating to this Credit
Agreement or the other Credit Documents except to the extent any such amendment
or waiver would (A) reduce the principal of or rate of interest on or Fees in
respect of the Loan in which the participant is participating or (B) postpone
the date fixed for any payment of principal (including extension of the
Termination Date or the date of any mandatory prepayment), interest or Fees in
which the participant is participating, and (iii) sub-participations by the
participant (except to an affiliate, parent company or affiliate of a parent
company of the participant) shall be prohibited. In the case of any such
participation, the participant shall not have any rights under this Credit
Agreement or the other Credit Documents (the participant's rights against the
selling Lender in respect of such participation to be those set forth in the
participation agreement with such Lender creating such participation) and all
amounts payable by the Credit Parties hereunder shall be determined as if such
Lender had not sold such participation; provided, however, that such participant
shall be entitled to receive additional amounts under Sections 3.6, 3.7, 3.9,
3.10, 3.13, and 3.14 on the same basis as if it were a Lender (but in no event
shall such additional amounts exceed the amount that would have been payable to
the relevant Lender in the absence of such participation, and subject to
limitations on such participant comparable to those contained in Section 3.12
with respect to Requesting Lenders).
10.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent or any Lender
in exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Administrative Agent or any Lender
and the Credit Parties shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power or privilege hereunder or under any
other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies that the Administrative Agent or any Lender would otherwise
have. No notice to or demand on the Borrower or any other Credit Party in any
case shall entitle the Borrower or such Credit Party to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of the
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Administrative Agent or the Lenders to any other or further action in any
circumstances without notice or demand.
10.5 Payment of Expenses, etc.
The Borrower agrees to: (i) pay all reasonable, documented out-of-pocket
costs and expenses (A) of the Administrative Agent in connection with the
negotiation, preparation, execution, and delivery and administration of this
Credit Agreement and the other Credit Documents and the documents and
instruments referred to herein and therein (including, without limitation, the
reasonable, documented fees and expenses of Xxxxx & Xxx Xxxxx, PLLC, special
counsel to the Administrative Agent) and any amendment, waiver or consent
relating hereto and thereto including, but not limited to, any such amendments,
waivers or consents resulting from or related to any work-out, renegotiation or
restructure relating to the performance by the Credit Parties under this Credit
Agreement; provided, however, the Borrower's obligations under this subsection
(A) shall be limited to those of one (1) law firm, and (B) of the Administrative
Agent and the Lenders in connection with enforcement of the Credit Documents and
the documents and instruments referred to therein (including, without
limitation, in connection with any such enforcement, the reasonable, documented
fees and disbursements of counsel for the Administrative Agent and each of the
Lenders); (ii) pay and hold each of the Lenders harmless from and against any
and all present and future stamp and other similar taxes with respect to the
foregoing matters and save each of the Lenders harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Lender) to pay such taxes; and (iii)
reimburse each Lender, its officers, directors, employees, representatives and
Administrative Agents from and hold each of them harmless against any and all
losses, liabilities, claims, damages, or reasonable, documented, out-of-pocket
expenses incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of any investigation, litigation or other
proceeding (whether or not any Lender is a party thereto) related to the
entering into and/or performance of any Credit Document or the use of proceeds
of the Loan (including other extensions of credit) hereunder or the consummation
of any other transactions contemplated in any Credit Document, including,
without limitation, the reasonable, documented fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).
10.6 Amendments, Waivers, and Consents.
Neither this Credit Agreement nor any other Credit Document nor any of the
terms hereof or thereof may be amended, changed, waived, discharged, or
terminated unless such amendment, change, waiver, discharge, or termination is
in writing entered into by, or approved in writing by, the Required Lenders and
the Credit Parties; provided, however, that:
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(a) the consent of each Lender affected thereby is required to:
(i) extend the final maturity of any Loan or any Commitment, or any
portion thereof, or extend or waive any principal amortization payment of
any Loan, or any portion thereof, or waive application of any mandatory
prepayment;
(ii) reduce the rate or extend the time of payment of interest (other
than as a result of waiving the applicability of any increase in interest
rates after the occurrence of an Event of Default or on account of a
failure to deliver financial statements on a timely basis) thereon or Fees
hereunder;
(iii) reduce or waive the principal amount of any Loan;
(iv) increase the Commitment of a Lender over the amount thereof in
effect (it being understood and agreed that a waiver of any Default or
Event of Default or mandatory reduction in the Commitments shall not
constitute a change in the terms of any Commitment of any Lender);
(v) except as the result of or in connection with a dissolution,
merger or disposition of a Subsidiary permitted under Section 7.3, release
the Borrower from its obligations under the Credit Documents;
(vi) amend, modify or waive any provision of this Section 10.6 or
Sections 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.13, 3.14, 3.15, 3.16, 8.1(a),
10.2, 10.3, 10.5, or 10.9;
(vii) reduce any percentage specified in, or otherwise modify, the
definition of Required Lenders;
(viii) consent to the assignment or transfer by any Credit Party of
any of its rights and obligations under (or in respect of) the Credit
Documents except as permitted thereby; or
(ix) release any of the Guarantors from their obligations under the
Guaranty;
(b) without the consent of the Administrative Agent, no provision of
Section 9 may be amended;
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
Loan, and each Lender acknowledges that the provisions of Section 1126(c) of the
Bankruptcy Code supersedes the unanimous consent provisions set forth herein and
(y) the Required Lenders may consent to allow the Credit Parties to use cash
collateral in the context of a bankruptcy or insolvency proceeding.
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10.7 Counterparts.
This Credit Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart.
10.8 Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
10.9 Survival.
All indemnities set forth herein, including, without limitation, in
Sections 3.10, 3.13, 3.14, 9.7 or 10.5 shall survive the execution and delivery
of this Credit Agreement, the making of the Loan, the repayment of the Loan and
other obligations under the Credit Documents and the termination of the
Commitments hereunder, and all representations and warranties made by the Credit
Parties herein shall survive delivery of the Notes and the making of the Loan
hereunder.
10.10 Governing Law; Submission to Jurisdiction; Venue.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Any legal action or proceeding with respect to this Credit Agreement or any
other Credit Document may be brought in the state or federal courts in the State
of North Carolina and, by execution and delivery of this Credit Agreement, each
of the Credit Parties hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the nonexclusive jurisdiction of
such courts. Each of the Credit Parties further irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out for notices pursuant to Section
10.1, such service to become effective three (3) days after such mailing.
Nothing herein shall affect the right of the Administrative Agent to serve
process in any other manner permitted by law or to commence legal proceedings or
to otherwise proceed against any Credit Party in any other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection that it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Credit Agreement or any
other Credit Document brought in the courts referred to in subsection (a) hereof
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
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(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE ADMINISTRATIVE AGENT, THE
LENDERS, THE BORROWER AND EACH OF THE OTHER CREDIT PARTIES HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
10.11 Severability.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
10.12 Entirety.
This Credit Agreement together with the other Credit Documents represent
the entire agreement of the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the transactions
contemplated herein and therein.
10.13 Binding Effect; Termination.
(a) This Credit Agreement shall become effective at such time on or after
the Effective Date when it shall have been executed by each of the Credit
Parties and the Administrative Agent, and the Administrative Agent shall have
received copies hereof (telefaxed or otherwise) that, when taken together, bear
the signatures of each Lender, and thereafter this Credit Agreement shall be
binding upon and inure to the benefit of each Credit Party, the Administrative
Agent and each Lender and their respective successors and assigns.
(b) The term of this Credit Agreement shall be until neither the Loan nor
any other amounts payable hereunder or under any of the other Credit Documents
shall remain outstanding and until all of the Commitments hereunder shall have
expired or been terminated.
10.14 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 Credit 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 the Borrower
in respect of any such sum due from it to the Administrative Agent or any Lender
hereunder or under the other Credit 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 Credit
Agreement (the "Agreement Currency"), be discharged only to the
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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 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
Borrower agrees, 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 Borrower (or to any other Person who
may be entitled thereto under applicable law).
SECTION 11
GUARANTY
11.1 The Guaranty.
In order to induce the Lenders to enter into this Credit Agreement and to
extend credit hereunder and in recognition of the direct benefits to be received
by the Guarantors from the Loan hereunder, each of the Guarantors hereby agrees
with the Administrative Agent and the Lenders as follows: Each of the Guarantors
hereby unconditionally and irrevocably, jointly and severally guarantees as
primary obligor and not merely as surety, the full and prompt payment when due,
whether upon maturity, by acceleration or otherwise, of any and all indebtedness
of the Borrower to the Administrative Agent and the Lenders and the performance
of all of the obligations of the Credit Parties under this Credit Agreement and
each of the other Credit Documents, in each case strictly in accordance with the
terms thereof (the "Guaranteed Obligations"). If any or all of the indebtedness
of the Borrower to the Administrative Agent and the Lenders becomes due and
payable hereunder as a result of an Event of Default, each Guarantor
unconditionally promises to pay, without duplication, such Guaranteed
Obligations to, or upon the order of, the Administrative Agent and the Lenders,
on demand, together with any and all reasonable expenses that may be incurred by
the Administrative Agent or the Lenders in collecting any of the Guaranteed
Obligations. The words "Guaranteed Obligations" are used in this Section 11 in
their most comprehensive sense and includes any and all advances, debts,
obligations and liabilities of the Borrower arising out of this Credit Agreement
or the other Credit Documents, in each case, heretofore, now, or hereafter made,
incurred or created, whether voluntarily or involuntarily, absolute or
contingent, liquidated or unliquidated, determined or undetermined, whether or
not such indebtedness is from time to time reduced, or extinguished and
thereafter increased or incurred, whether the Borrower may be liable
individually or jointly with others, whether or not recovery upon such
indebtedness may be or hereafter become barred by any statute of limitations,
and whether or not such indebtedness may be or hereafter become otherwise
unenforceable.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents, to the extent the obligations of a Guarantor
shall be adjudicated to be invalid
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or unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or transfers)
then the obligations of each such Guarantor hereunder shall be limited to the
maximum amount that is permissible under applicable law (whether federal or
state and including, without limitation, the Bankruptcy Code).
11.2 Bankruptcy.
Additionally, each of the Guarantors unconditionally and irrevocably
guarantees, jointly and severally the payment of any and all indebtedness of the
Borrower to the Lenders whether or not due or payable by the Borrower upon the
occurrence of any of the events specified in Section 8.1(f), and unconditionally
promises to pay such Guaranteed Obligations, without duplication, to, or upon
the order of, the Administrative Agent for the account of the Lenders, on
demand, in lawful money of the United States. Each of the Guarantors further
agrees that to the extent that the Borrower or a Guarantor shall make a payment
or a transfer of an interest in any property to the Administrative Agent or any
Lender, which payment or transfer or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, or otherwise is avoided,
and/or required to be repaid to the Borrower or a Guarantor, the estate of the
Borrower or a Guarantor, a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then to the
extent of such avoidance or repayment, the obligation or part thereof intended
to be satisfied shall be revived and continued in full force and effect as if
said payment had not been made.
11.3 Nature of Liability.
The liability of each Guarantor hereunder is exclusive and independent of
any security for or other guaranty of the indebtedness of the Borrower whether
executed by any such Guarantor, any other guarantor or by any other party, and
no Guarantor's liability hereunder shall be affected or impaired by (a) any
direction as to application of payment by the Borrower or by any other party, or
(b) any other continuing or other guaranty, undertaking or maximum liability of
a guarantor or of any other party as to the indebtedness of the Borrower, or (c)
any payment on or in reduction of any such other guaranty or undertaking, or (d)
any dissolution, termination or increase, decrease or change in personnel by the
Borrower, or (e) any payment made to the Administrative Agent or the Lenders on
the indebtedness that the Administrative Agent or such Lenders repay the
Borrower pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each of the Guarantors waives
any right to the deferral or modification of its obligations hereunder by reason
of any such proceeding.
11.4 Independent Obligation.
The obligations of each Guarantor hereunder are independent of the
obligations of any other guarantor or the Borrower, and a separate action or
actions may be brought and prosecuted against each Guarantor whether or not
action is brought against any other guarantor or the Borrower and whether or not
any other Guarantor or the Borrower is joined in any such action or actions;
provided, however, all amounts are without duplication and nothing contained
herein
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shall entitle the Lenders to recover, in the aggregate, more than the amount of
the Guaranteed Obligations.
11.5 Authorization.
Each of the Guarantors authorizes the Administrative Agent and each Lender
without notice or demand (except as shall be required by applicable statute and
cannot be waived), and without affecting or impairing its liability hereunder,
from time to time to (a) renew, compromise, extend, increase, accelerate or
otherwise change the time for payment of, or otherwise change the terms of the
indebtedness or any part thereof in accordance with this Credit Agreement,
including any increase or decrease of the rate of interest thereon, (b) take and
hold security from any guarantor or any other party for the payment of this
Guaranty or the indebtedness and exchange, enforce waive and release any such
security, (c) apply such security and direct the order or manner of sale thereof
as the Administrative Agent and the Lenders in their discretion may determine,
and (d) release or substitute any one or more endorsers, guarantors, the
Borrower or other obligors.
11.6 Reliance.
It is not necessary for the Administrative Agent or the Lenders to inquire
into the capacity or powers of the Borrower or the officers, directors, partners
or agents acting or purporting to act on its behalf, and any indebtedness made
or created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
11.7 Waiver.
(a) Each of the Guarantors waives any right (except as shall be required by
applicable statute and cannot be waived) to require the Administrative Agent or
any Lender to (i) proceed against the Borrower, any other guarantor or any other
party, (ii) proceed against or exhaust any security held from the Borrower, any
other guarantor or any other party, or (iii) pursue any other remedy in the
Administrative Agent's or any Lender's power whatsoever. Each of the Guarantors
waives any defense based on or arising out of any defense of the Borrower, any
other guarantor or any other party other than payment in full of the
indebtedness, including without limitation any defense based on or arising out
of the disability of the Borrower, any other guarantor or any other party, or
the unenforceability of the indebtedness or any part thereof from any cause, or
the cessation from any cause of the liability of the Borrower other than payment
in full of the indebtedness. The Administrative Agent or any of the Lenders may,
at their election, foreclose on any security held by the Administrative Agent or
a Lender by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the
Administrative Agent and any Lender may have against the Borrower or any other
party, or any security, without affecting or impairing in any way the liability
of any Guarantor hereunder except to the extent the indebtedness has been paid.
Each of the Guarantors waives any defense arising out of any such election by
the Administrative Agent and each of the Lenders, even though such election
operates to impair or
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extinguish any right of reimbursement or subrogation or other right or remedy of
the Guarantors against the Borrower or any other party or any security.
(b) Each of the Guarantors waives all presentments, demands for
performance, protests, and notices, including without limitation notices of
nonperformance, notice of protest, notices of dishonor, notices of acceptance of
this Guaranty, and notices of the existence, creation, or incurring of new or
additional indebtedness. Each Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower's financial condition and assets, and of
all other circumstances bearing upon the risk of nonpayment of the indebtedness
and the nature, scope, and extent of the risks that such Guarantor assumes and
incurs hereunder, and agrees that neither the Administrative Agent nor any
Lender shall have any duty to advise such Guarantor of information known to it
regarding such circumstances or risks.
(c) Each of the Guarantors hereby agrees it will not exercise any rights of
subrogation that it may at any time otherwise have as a result of this Guaranty
(whether contractual, under Section 509 of the U.S. Bankruptcy Code, or
otherwise) to the claims of the Lenders against the Borrower or any other
guarantor of the indebtedness of the Borrower owing to the Lenders
(collectively, the "Other Parties") and all contractual, statutory or common law
rights of reimbursement, contribution or indemnity from any Other Party that it
may at any time otherwise have as a result of this Guaranty until such time as
the Loan hereunder shall have been paid and the Commitments have been
terminated. Each of the Guarantors hereby further agrees not to exercise any
right to enforce any other remedy that the Administrative Agent and the Lenders
now have or may hereafter have against any Other Party, any endorser or any
other guarantor of all or any part of the indebtedness of the Borrower and any
benefit of, and any right to participate in, any security or collateral given to
or for the benefit of the Lenders to secure payment of the indebtedness of the
Borrower until such time as the Loan hereunder shall have been paid and the
Commitments have been terminated.
11.8 Limitation on Enforcement.
The Lenders agree that this Guaranty may not be enforced against any
director, officer, employee or individual stockholder of the Guarantors or the
Borrower.
11.9 Confirmation of Payment.
The Administrative Agent and the Lenders will, upon request after payment
of the Guaranteed Obligations and termination of the commitments relating
thereto, confirm to the Borrower, the Guarantors or any other Person that such
Guaranteed Obligations have been paid and the commitments relating thereto
terminated, subject to the provisions of Section 11.2.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Credit Agreement to be duly executed and delivered as of the
date first above written.
BORROWER: UNIVERSAL CORPORATION,
a Virginia corporation
By: /s/ Xxxxx X. X. Xxxxxx
----------------------------------------------
Name: Xxxxx X. X. Xxxxxx
Title: Vice President and Treasurer
GUARANTORS: [NONE]
[Signature Pages Continue]
ADMINISTRATIVE
AGENT AND LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION,
individually in its capacity as a
Lender and in its capacity as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
[Signature Pages Continue]
AGFIRST FARM CREDIT BANK
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
[Signature Pages Continue]
SUNTRUST BANK
By: /s/ X. X. Xxxxxxxx
----------------------------------------------
Name: X. X. Xxxxxxxx
Title: Managing Director
[Signature Pages Continue]
ABN AMRO BANK N.V.
By: /s/ Xxxxxx Noique /s/ Xxxxxxx X. Xxxxxx
------------------------- ----------------------
Name: Xxxxxx Noique Xxxxxxx X. Xxxxxx
Title: Group Vice President Vice President
[Signature Pages Continue]
ING BANK N.V., LONDON BRANCH
By: /s/ X. X. Xxxxxxxx /s/ X. Xxxxxxxx
------------------------- ----------------------
Name: X. X. Xxxxxxxx X. Xxxxxxxx
Title: Director Vice President
[Signature Pages Continue]
DEUTSCHE BANK AG
By: /s/ Xxx. van Helden
----------------------------------------------
Name: Xxx. van Helden
Title: Vice President
[Signature Pages Continue]
By: /s/ Xxxxx van het Groenewoud
----------------------------------------------
Name: Xxxxx van het Groenewoud
Title: Assistant Vice President
[Signature Pages Continue]
AGSTAR FINANCIAL SERVICES, PCA
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President Capital Markets
[Signature Pages Continue]
BANCA INTESA NEW YORK BRANCH
By: /s/ Xxxxx Xxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxx
----------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
CHEVY CHASE BANK, F.S.B.
By: /s/ Xxxx Xxxxxx
----------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
[Signature Pages Continue]
FARM CREDIT BANK OF WICHITA, as disclosed agent
By: /s/ Xxxxxxx Xxxx
----------------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
[Signature Pages Continue]
FARM CREDIT SERVICES OF MISSOURI, PCA
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, Agribusiness
[Signature Pages Continue]
FCS OF MID AMERICA, PCA
By: /s/ Xxxxx Xxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Agribusiness Account Executive
[Signature Pages Continue]
GREENSTONE FARM CREDIT SERVICES, FLCA
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President / Senior Lending Officer
[Signature Pages Continue]
MALAYAN BANK BERHAD
By: /s/ Wan Xxxxxx Xxxxxx
----------------------------------------------
Name: Wan Xxxxxx Xxxxxx
Title: General Manager
[Signature Pages Continue]
NATEXIS BANQUES POPULAIRES
By: /s/ Guillaume de Parscau /s/ Xxxxxxx X. Xxxxxxx
------------------------- ----------------------
Name: Guillaume de Parscau Xxxxxxx X. Xxxxxxx
Title: First Vice President & Vice President
Manager Commodities
Finance Group
[Signature Pages Continue]
NORTHWEST FARM CREDIT SERVICES, PCA
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
[Signature Pages Continue]
STANDARD CHARTERED BANK
By: /s/ Xxxxxx X. Xx /s/ Xxxx Xxxxxxxx
------------------------- ----------------------
Name: Xxxxxx X. Xx Xxxx Xxxxxxxx
Title: Vice President Vice President
[Signature Pages Continue]
THE BANK OF NOVA SCOTIA
By: /s/ Xxxx X. Xxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
[Signature Pages Continue]
USB AG, CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxxx X. Saint
----------------------------------------------
Name: Xxxxxxx X. Saint
Title: Associate Director
Banking Products Services, US
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
Banking Products Services, US
[Signature Pages Continue]
