CREDIT AGREEMENT
among
XXXXX, INC.
as Borrower,
THE LENDERS IDENTIFIED HEREIN,
AND
NATIONSBANK, N.A.,
as Administrative Agent
AND
THE CHASE MANHATTAN BANK,
as Documentation Agent
DATED AS OF AUGUST 8, 1997
TABLE OF CONTENTS
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SECTION 1. DEFINITIONS AND ACCOUNTING TERMS 1
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1.1. Definitions........................................................ 1
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1.2. Computation of Time Periods and Other Definitional Provisions...... 19
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1.3. Accounting Terms................................................... 19
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SECTION 2. CREDIT FACILITIES............................................. 20
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2.1. Revolving Loans.................................................... 20
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2.2. Letter of Credit Subfacility....................................... 22
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2.3. Competitive Bid Loans Subfacility.................................. 27
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2.4. Swing Line Loans Subfacility....................................... 30
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2.5. Continuations and Conversions...................................... 31
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2.6. Minimum Amounts.................................................... 32
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SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT.. 32
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3.1. Interest........................................................... 32
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3.2. Place and Manner of Payments....................................... 32
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3.3. Prepayments........................................................ 33
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3.4. Fees............................................................... 34
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3.5. Payment in full at Maturity........................................ 35
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3.6. Computations of Interest and Fees.................................. 35
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3.7. Pro Rata Treatment................................................. 36
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3.8. Allocation of Payments After Event of Default...................... 37
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3.9. Sharing of Payments................................................ 38
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3.10. Capital Adequacy.................................................. 39
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3.11. Inability To Determine Interest Rate.............................. 39
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3.12. Illegality........................................................ 39
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3.13. Requirements of Law............................................... 40
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3.14. Taxes............................................................. 41
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3.15. Indemnity......................................................... 44
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3.16. Replacement Lenders............................................... 44
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SECTION 4. CONDITIONS PRECEDENT.......................................... 45
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4.1. Closing Conditions................................................. 45
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4.2. Conditions to All Extensions of Credit............................. 47
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SECTION 5. REPRESENTATIONS AND WARRANTIES................................ 48
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5.1. Financial Condition................................................ 48
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5.2. No Material Change................................................. 48
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5.3. Organization and Good Standing..................................... 48
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5.4. Due Authorization.................................................. 49
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5.5. No Conflicts....................................................... 49
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5.6. Consents........................................................... 49
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5.7. Enforceable Obligations............................................ 49
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5.8. No Default......................................................... 49
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5.9. Ownership.......................................................... 50
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5.10. Indebtedness...................................................... 50
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5.11. Litigation........................................................ 50
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5.12. Taxes............................................................. 50
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5.13. Compliance with Law............................................... 50
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5.14. ERISA............................................................. 50
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5.15. Subsidiaries...................................................... 51
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5.16. Use of Proceeds; Margin Stock..................................... 52
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5.17. Government Regulation............................................. 52
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5.18. Environmental Matters............................................. 52
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5.19. Intellectual Property............................................. 53
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5.20. Solvency.......................................................... 53
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5.21. Investments....................................................... 54
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5.22. No Financing of Corporate Takeovers............................... 54
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5.23. Disclosure........................................................ 54
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5.24. Licenses, etc..................................................... 54
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5.25. No Burdensome Restrictions........................................ 54
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5.26. Brokers' Fees..................................................... 54
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5.27. Labor Matters..................................................... 54
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SECTION 6. AFFIRMATIVE COVENANTS......................................... 55
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6.1. Information Covenants.............................................. 55
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6.2. Preservation of Existence and Franchises........................... 57
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6.3. Books and Records.................................................. 58
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6.4. Compliance with Law................................................ 58
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6.5. Payment of Taxes and Other Indebtedness............................ 58
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6.6. Insurance.......................................................... 58
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6.7. Maintenance of Property............................................ 58
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6.8. Performance of Obligations......................................... 59
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6.9. Use of Proceeds.................................................... 59
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6.10. Audits/Inspections................................................ 59
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6.11. Financial Covenants............................................... 59
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SECTION 7. NEGATIVE COVENANTS............................................ 60
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7.1. Indebtedness....................................................... 60
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7.2. Liens.............................................................. 61
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7.3. Nature of Business................................................. 62
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7.4. Consolidation and Merger........................................... 62
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7.5. Sale or Lease of Assets............................................ 62
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7.6. Advances, Investments and Loans.................................... 62
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7.7. Restricted Payments................................................ 63
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7.8. Transactions with Affiliates....................................... 63
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7.9. Fiscal Year; Organizational Documents.............................. 63
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ii
7.10. Subordinated Debt................................................. 64
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7.11. Limitations....................................................... 64
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7.12. Sale Leasebacks................................................... 64
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SECTION 8. EVENTS OF DEFAULT............................................. 65
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8.1. Events of Default.................................................. 65
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8.2. Acceleration; Remedies............................................. 68
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SECTION 9. AGENCY PROVISIONS............................................. 69
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9.1. Appointment........................................................ 69
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9.2. Delegation of Duties............................................... 69
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9.3. Exculpatory Provisions............................................. 69
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9.4. Reliance on Communications......................................... 70
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9.5. Notice of Default.................................................. 70
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9.6. Non-Reliance on Agents and Other Lenders........................... 70
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9.7. Indemnification.................................................... 71
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9.8. Agents in Their Individual Capacity................................ 71
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9.9. Successor Agent.................................................... 72
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SECTION 10. MISCELLANEOUS................................................ 72
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10.1. Notices........................................................... 72
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10.2. Right of Set-Off.................................................. 72
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10.3. Benefit of Agreement.............................................. 73
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10.4. No Waiver; Remedies Cumulative.................................... 75
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10.5. Payment of Expenses; Indemnification.............................. 76
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10.6. Amendments, Waivers and Consents.................................. 76
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10.7. Counterparts...................................................... 77
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10.8. Headings.......................................................... 78
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10.9. Defaulting Lender................................................. 78
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10.10. Survival of Indemnification and Representations and Warranties... 78
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10.11. Governing Law; Venue............................................. 78
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10.12. Waiver of Jury Trial............................................. 79
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10.13. Time............................................................. 79
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10.14. Severability..................................................... 79
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10.15. Entirety......................................................... 79
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10.16. Binding Effect; Termination of Prior Credit Agreement............ 79
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10.17. Confidentiality.................................................. 79
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iii
SCHEDULES
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Schedule 1.1(a) Commitment Percentages
Schedule 1.1(b) Existing Letters of Credit
Schedule 1.1(c) Initial Shareholders
Schedule 5.6 Consents, Approvals and Authorizations
Schedule 5.10 Indebtedness
Schedule 5.11 Litigation
Schedule 5.15 Subsidiaries
Schedule 5.18 Environmental Matters
Schedule 5.27 Labor Disputes
Schedule 7.2 Liens
Schedule 7.6 Investments
Schedule 10.1 Notices
EXHIBITS
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Exhibit 2.1 Form of Notice of Borrowing
Exhibit 2.1(e) Form of Revolving Note
Exhibit 2.3(b) Form of Competitive Bid Loan Note
Exhibit 2.3(d) Form of Competitive Bid Accept/Reject Letter
Exhibit 2.3(h) Form of Competitive Bid Loan Note
Exhibit 2.4(b) Form of Swing Line Loan Request
Exhibit 2.4(e) Form of Swing Line Loan Note
Exhibit 2.5 Form of Notice of Continuation/Conversion
Exhibit 6.1(c) Form of Officer's Certificate
Exhibit 10.3 Form of Assignment Agreement
iv
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Credit Agreement"), is entered into as of
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August 8, 1997 among XXXXX, INC., a Delaware corporation ("Borrower"), the
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Lenders (as defined herein), NATIONSBANK, N.A., as Administrative Agent for the
Lenders and THE CHASE MANHATTAN BANK, as Documentation Agent for the Lenders.
RECITALS
WHEREAS, the Borrower, T.K.G. Acquisition Corp. and each of the
Borrower's Domestic Subsidiaries entered into that certain Amended and Restated
Credit Agreement dated as of December 17, 1996 which provided a $230,000,000
credit facility to the Borrower (the "Prior Credit Agreement");
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WHEREAS, the Borrower desires to pay in full all obligations owing under
the Prior Credit Agreement such that the Borrower and all obligors thereunder
are discharged from all obligations under the Prior Credit Agreement (other than
any provisions thereof that expressly survive as set forth in the Prior Credit
Agreement);
WHEREAS, the Borrower has requested that the Lenders provide a new
$275,000,000 credit facility; and
WHEREAS, the Lenders have agreed to make the requested 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 is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
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1.1. Definitions.
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As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Adjusted Base Rate" means the Base Rate plus the Applicable
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Percentage.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
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Applicable Percentage.
"Administrative Agent" means NationsBank, N.A. or any successor
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administrative agent appointed pursuant to Section 9.9.
"Administrative Agent Fee Letter" means that certain letter agreement
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dated as of June 23, 1997 between the Administrative Agent and the
Borrower, as it may be amended, modified, supplemented or replaced from
time to time.
"Agency Services Address" means NationsBank, N.A., NC1-001-15-04, 101
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Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn: Agency Services,
or such other address as may be identified by written notice from the
Administrative Agent to the Borrower.
"Agents" mean the Administrative Agent and the Documentation Agent and
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any successors and assigns in such capacity.
"Agents Fee Letter" means that certain letter agreement dated as of
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June 23, 1997 among the Agents and the Borrower, as it may be amended,
modified, supplemented or replaced from time to time.
"Affiliate" means, with respect to any Person, any other Person
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directly or indirectly controlling (including but not limited to all
directors and officers of such Person), controlled by or under direct or
indirect common control with such Person. A Person shall be deemed to
control a corporation if such Person possesses, directly or indirectly, the
power (i) to vote 10% or more of the securities having ordinary voting
power for the election of directors of such corporation or (ii) to direct
or cause direction of the management and policies of such corporation,
whether through the ownership of voting securities, by contract or
otherwise.
"Applicable Percentage" means for Revolving Loans, Letter of Credit
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Fees and Commitment Fees, the appropriate applicable percentages
corresponding to the Leverage Ratio in effect as of the most recent
Calculation Date as shown below:
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Applicable
Applicable Applicable Percentage Applicable
Percentage Percentage For Percentage
For For Letter of For
Pricing Leverage Eurodollar Base Rate Credit Commitment
Level Ratio Loans Loans Fee Fees
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I greater than or equal to 3.5 to 1.0 .75% 0% .75% .25%
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II less than 3.5 to 1.0 but .625% 0% .625% .20%
greater than or equal to 3.0 to 1.0
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III less than 3.0 to 1.0 but .50% 0% .50% .175%
2.5 to 1.0
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IV less than 2.5 to 1.0 but .40% 0% .40% .15%
2.0 to 1.0
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V less than 2.0 to 1.0 .325% 0% .325% .125%
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The Applicable Percentage for Revolving Loans, the Letter of Credit
Fees and the Commitment Fees shall, in each case, be determined and
adjusted quarterly on the date (each a "Calculation Date") five Business
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Days after the date by which the Borrower is
2
required to provide the officer's certificate in accordance with the
provisions of Section 6.1(c); provided that the initial Applicable
Percentage for Revolving Loans, the Letter of Credit Fees and the
Commitment Fees shall be based on Pricing Level IV (as shown above) and
shall remain at Pricing Level IV until the first Calculation Date
subsequent to December 31, 1997 and thereafter, the Pricing Level shall be
determined by the then current Leverage Ratio; and provided further that if
the Borrower fails to provide the officer's certificate required by Section
6.1(c) on or before the most recent Calculation Date, the Applicable
Percentage for Revolving Loans, the Letter of Credit Fees and the
Commitment Fees from such Calculation Date shall be based on Pricing Level
I until such time that an appropriate officer's certificate is provided
whereupon the Pricing Level shall be determined by the then current
Leverage Ratio. Each Applicable Percentage shall be effective from one
Calculation Date until the next Calculation Date except as set forth in the
prior sentence. Any adjustment in the Applicable Percentage shall be
applicable to all existing Revolving Loans and Letters of Credit as well as
any new Revolving Loans made or Letters of Credit issued.
At the time the officer's certificate is required to be delivered
pursuant to Section 6.1(c), the Borrower shall promptly deliver to the
Administrative Agent, at the address set forth on Schedule 10.1 and at the
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Agency Services Address, information regarding any change in the Leverage
Ratio that would change the then existing Pricing Level.
"Asset Disposition" means the disposition of any or all of the assets
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(or the sale of the stock of a Subsidiary) of the Borrower or any of its
Subsidiaries whether by sale, lease, transfer or otherwise.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
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States Code, as amended, modified, succeeded or replaced from time to time.
"Base Rate" means, for any day, the rate per annum (rounded upwards,
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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 __ of 1%
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or (b) the Prime Rate in effect on such day. If for any reason the
Administrative Agent shall have 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
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by reference to the Base Rate.
"Borrower" means Xxxxx, Inc., a Delaware corporation, together with
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any successors and permitted assigns.
3
"Business Day" means any day other than a Saturday, a Sunday, a legal
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holiday or a day on which banking institutions are authorized or required
by law or other governmental action to close in Charlotte, North Carolina
or New York, New York; provided that in the case of Eurodollar Loans, such
day is also a day on which dealings between banks are carried on in U.S.
dollar deposits in the London interbank market.
"Calculation Date" has the meaning set forth in the definition of
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Applicable Percentage.
"Capital Expenditures" means all expenditures of the Borrower and its
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Subsidiaries which, in accordance with GAAP, would be classified as capital
expenditures, including, without limitation, Capital Leases.
"Capital Lease" means, as applied to any Person, any lease of any
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property (whether real, personal or mixed) by that Person as lessee which,
in accordance with GAAP, is or should be accounted for as a capital lease
on the balance sheet of that Person.
"Cash Equivalents" means (a) securities issued or directly and fully
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guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) having maturities
of not more than twelve months from the date of acquisition, (b) U.S.
dollar denominated time deposits and certificates of deposit of (i) any
Lender, (ii) any domestic commercial bank of recognized standing having
capital and surplus in excess of $500,000,000 or (iii) any bank whose
short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with
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maturities of not more than 270 days from the date of acquisition, (c)
commercial paper and variable or fixed rate notes issued by any Approved
Bank (or by the parent company thereof) or any variable rate notes issued
by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent
thereof) or better by S&P or P-1 (or the equivalent thereof) or better by
Moody's and maturing within six months of the date of acquisition, (d)
repurchase agreements with a bank or trust company (including any of the
Lenders) or recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or fully guaranteed
by the United States of America in which the Borrower shall have a
perfected first priority security interest (subject to no other Liens) and
having, on the date of purchase thereof, a fair market value of at least
100% of the amount of the repurchase obligations and (e) Investments,
classified in accordance with GAAP as current assets, in money market
investment programs registered under the Investment Company Act of 1940, as
amended, which are administered by reputable financial institutions having
capital of at least $500,000,000 and the portfolios of which are limited to
Investments of the character described in the foregoing subdivisions (a)
through (d).
4
"Change of Control" means any of the following events:
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(a) (i) any "person" or "group" (within the meaning of Section 13(d)
or 14(d) of the Exchange Act) (other than one or more of the Initial
Shareholders) has become, directly or indirectly, the "beneficial owner"
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person shall be deemed to have "beneficial ownership" of all shares that
any such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), by way of merger,
consolidation or otherwise, of 35% or more of the voting power of the
Voting Stock of the Borrower on a fully-diluted basis, after giving effect
to the conversion and exercise of all outstanding warrants, options and
other securities of the Borrower convertible into or exercisable for Voting
Stock of the Borrower (whether or not such securities are then currently
convertible or exercisable), and (ii) such Person or group is or becomes,
directly or indirectly, the beneficial owner of a greater percentage of the
voting power of the Voting Stock of the Borrower calculated on such fully-
diluted basis, than the percentage beneficially owned by the Initial
Shareholders; or
(b) during any period of two consecutive calendar years, individuals
who at the beginning of such period constituted either the board or the
board of directors of the Borrower together with any new members of such
board or board of directors (i) whose elections by such board or board of
directors or whose nomination for election by the stockholders of the
Borrower was approved by a vote of a majority of the members of such board
or board of 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 or (ii) elected by the Initial Shareholders, cease
for any reason to constitute a majority of the directors of the Borrower
then in office; or
(c) a "change of control" (as defined in the Indenture) occurs.
"Closing Date" means the date hereof.
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"Code" means the Internal Revenue Code of 1986, as amended, modified,
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succeeded or replaced from time to time.
"Commitment Fees" means the fees payable to the Lenders pursuant to
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Section 3.4(a).
"Commitments" means the commitment of each Lender with respect to the
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Revolving Committed Amount and the commitment of NationsBank with respect
to the Swing Line Committed Amount.
"Competitive Bid" means an offer by a Lender to make a Competitive Bid
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Loan pursuant to the terms of Section 2.3.
"Competitive Bid Loan" means a loan made by a Lender in its discretion
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pursuant to the provisions of Section 2.3.
5
"Competitive Bid Loan Maximum Amount" shall have the meaning assigned
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such term in Section 2.3(a).
"Competitive Bid Loan Notes" means the promissory notes of the
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Borrower in favor of each of the Lenders evidencing the Competitive Bid
Loans provided pursuant to Section 2.3, individually or collectively, as
appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time and as
evidenced in the form of Exhibit 2.3(h).
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"Competitive Bid Loan Request" means a request by the Borrower for
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Competitive Bids substantially in the form of Exhibit 2.3(b).
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"Competitive Bid Request Fee" shall have the meaning assigned to such
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term in Section 3.4(d).
"Competitive Bid Rate" means, as to any Competitive Bid made by a
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Lender in accordance with the provisions of Section 2.3, the fixed rate of
interest offered by the Lender making the Competitive Bid.
"Credit Documents" means this Credit Agreement, the Notes, the LOC
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Documents, the Fee Letters and all other related agreements and documents
issued or delivered hereunder or thereunder or pursuant hereto or thereto.
"Default" means any event, act or condition which with notice or lapse
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of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, within one
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Business Day of when due (a) has failed to make a Loan or purchase a
Participation Interest required pursuant to the term of this Credit
Agreement, (b) other than as set forth in (a) above, has failed to pay to
the Agents or any Lender an amount owed by such Lender pursuant to the
terms of this Credit Agreement unless such amount is subject to a good
faith dispute or (c) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a receiver, trustee or similar
official.
"Documentation Agent" means The Chase Manhattan Bank or any successor
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documentation agent appointed pursuant to Section 9.9.
"Dollars" and "$" means dollars in lawful currency of the United
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States of America.
"Domestic Subsidiaries" means all direct and indirect Subsidiaries of
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the Borrower that are domiciled, incorporated or organized under the laws
of any state of the United States or the District of Columbia (or has any
material assets located in the United States).
"EBITDA" means, for any period, with respect to the Borrower and its
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Subsidiaries on a consolidated basis, the sum of (a) Net Income for such
period (excluding the effect of any extraordinary or other non-recurring
gains or losses outside of the
6
ordinary course of business) plus (b) an amount which, in the determination
of Net Income for such period has been deducted for (i) cash Interest
Expense for such period, (ii) total Federal, state, foreign or other income
taxes for such period and (iii) all Non-Cash Charges for such period, all
as determined in accordance with GAAP.
"Effective Date" means the date on which the conditions set forth in
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Section 4.1 shall have been fulfilled (or waived in the sole discretion of
the Lenders).
"Eligible Assignee" means (a) any Lender or Affiliate or subsidiary of
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a Lender and (b) any other commercial bank, financial institution,
institutional lender or "accredited investor" (as defined in Regulation D
of the Securities and Exchange Commission).
"Environmental Claim" means any investigation, written notice,
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violation, written demand, written allegation, action, suit, injunction,
judgment, order, consent decree, penalty, fine, lien, proceeding, or
written claim whether administrative, judicial, or private in nature from
activities or events taking place during or prior to the Borrower's or any
of its Subsidiaries' ownership or operation of any Real Property and
arising (a) pursuant to, or in connection with, an actual or alleged
violation of, any Environmental Law, (b) in connection with any Hazardous
Material, (c) from any assessment, abatement, removal, remedial,
corrective, or other response action required by an Environmental Law or
other order of a Governmental Authority or (d) from any actual or alleged
damage, injury, threat, or harm to health, safety, natural resources, or
the environment.
"Environmental Laws" means any current or future legal requirement of
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any Governmental Authority pertaining to (a) the protection of health,
safety, and the environment, (b) the conservation, management, or use of
natural resources and wildlife, (c) the protection or use of surface water
and groundwater or (d) the management, manufacture, possession, presence,
use, generation, transportation, treatment, storage, disposal, release,
threatened release, abatement, removal, remediation or handling of, or
exposure to, any hazardous or toxic substance or material and includes,
without limitation, the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act,
as amended by the Resource Conservation and Recovery Act of 1976 and
Hazardous and Solid Waste Amendment of 1984, 42 USC 6901 et seq., Federal
Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33
USC 1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq.,
Toxic Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous
Materials Transportation Act, 49 USC App. 1801 et seq., Occupational Safety
and Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act
of 1990, 33 USC 2701 et seq., Emergency Planning and Community Right-to-
Know Act of 1986, 42 USC 11001 et seq., National Environmental Policy Act
of 1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974, as amended,
42 USC 300(f) et seq., any analogous implementing or successor law, and any
amendment, rule, regulation, order, or directive issued thereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended, and any successor statute thereto, as interpreted by the rules and
regulations
7
thereunder, all as the same may be in effect form time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity, whether or not incorporated, which
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is under common control with the Borrower or any of its Subsidiaries within
the meaning of Section 4001(a)(14) of ERISA, or is a member of a group
which includes the Borrower or any of its Subsidiaries and which is treated
as a single employer under Sections 414(b), (c), (m), or (o) of the Code.
"Equity Issuance" means any issuance by the Borrower to any Person of
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(a) shares of its capital stock or other equity interests, (b) any shares
of its capital stock or other equity interests pursuant to the exercise of
options (other than stock issued to employees and directors pursuant to
employees or directors stock option plans) or warrants or (c) any shares of
its capital stock or other equity interests pursuant to the conversion of
any debt securities issued subsequent to the Closing Date to equity. The
amount of any Equity Issuance shall be the net cash proceeds derived
therefrom, including, in the case of any conversion of any debt securities,
issued after the Closing Date, into equity the amount of such debt.
"Eurodollar Loan" means a Loan (other than a Competitive Bid Loan)
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bearing interest based at a rate determined by reference to the Eurodollar
Rate.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
---------------
Loan comprising part of the same borrowing (including conversions,
extensions and renewals), a per annum interest rate determined pursuant to
the following formula:
Eurodollar Rate = London Interbank Offered Rate
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1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that percentage
-----------------------------
(expressed as a decimal) which is in effect from time to time under
Regulation D of the Board of Governors of the Federal Reserve System (or
any successor), 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 Eurodollar Loans is determined), whether or not a Lender has any
Eurocurrency liabilities subject to such reserve requirement at that time.
Eurodollar Loans 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 Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Event of Default" has the meaning specified in Section 8.1.
----------------
8
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
and the rules and regulations promulgated thereunder.
"Existing Letters of Credit" means the letters of credit described by
--------------------------
date of issuance, letter of credit number, undrawn amount, name of
beneficiary and the date of expiry on Schedule 1.1(b) hereto.
---------------
"Extension of Credit" means, as to any Lender, the making of a Loan by
-------------------
such Lender (or a participation therein by a Lender) or the issuance of, or
participation in, a Letter of Credit by such Lender.
"Federal Funds Rate" means for any day the rate per annum (rounded
------------------
upward, if necessary, to the nearest 1/100th 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 determined by the Administrative
Agent.
"Fee Letters" means (a) the Agents Fee Letter and (b) the
-----------
Administrative Agent Fee Letter.
"Funded Debt" means, without duplication, the sum of (a) all
-----------
Indebtedness of the Borrower and its Subsidiaries for borrowed money (it
being understood that with respect to Indebtedness incurred with an
original issue discount, the obligations shall consist of the then accreted
value), (b) all purchase money Indebtedness of the Borrower and its
Subsidiaries, (c) the principal portion of all obligations of the Borrower
and its Subsidiaries under Capital Leases, (d) commercial letters of credit
and the maximum amount of all performance and standby letters of credit
issued or bankers' acceptance facilities created for the account of the
Borrower or one of its Subsidiaries, including, without duplication, all
unreimbursed draws thereunder, (e) all Guaranty Obligations of the Borrower
and its Subsidiaries with respect to Funded Debt of another person, (f) all
Funded Debt of another entity secured by a Lien on any property of the
Borrower or any of its Subsidiaries whether or not such Funded Debt has
been assumed by the Borrower or any of its Subsidiaries, (g) all Funded
Debt of any partnership or unincorporated joint venture to the extent the
Borrower or one of its Subsidiaries is legally obligated or has a
reasonable expectation of being liable with respect thereto, net of any
assets of such partnership or joint venture and (h) the principal balance
outstanding under any synthetic lease, tax retention operating lease, off-
balance sheet loan or similar off-balance sheet financing product where
such transaction is considered borrowed money indebtedness for tax purposes
but is classified as an operating lease in accordance with GAAP.
9
"GAAP" means generally accepted accounting principles in the United
----
States applied on a consistent basis and subject to Section 1.3.
"Governmental Authority" means any Federal, state, local, provincial
----------------------
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guaranty Obligations" means, with respect to any Person, without
--------------------
duplication, any obligations (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, (a) to purchase any such
Indebtedness or other obligation or any property constituting security
therefor, (b) to advance or provide funds or other support for the payment
or purchase of such indebtedness or obligation or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including, without limitation, maintenance agreements, comfort letters,
take or pay arrangements, put agreements or similar agreements or
arrangements) for the benefit of the holder of Indebtedness of such other
Person, (c) to lease or purchase property, securities or services primarily
for the purpose of assuring the owner of such Indebtedness or (d) to
otherwise assure or hold harmless the owner of such Indebtedness or
obligation against loss in respect thereof. The amount of any Guaranty
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 Guaranty Obligation is made.
"Hazardous Materials" means any substance, material or waste defined
-------------------
or regulated in or under any Environmental Laws.
"Hedging Agreements" means any interest rate protection agreement,
------------------
foreign exchange contract, currency swap agreement, commodity purchase or
option agreement or other interest or exchange rate or commodity price
hedging agreement or other similar agreement between the Borrower and any
Lender, or any Affiliate of a Lender, designed to protect the Borrower or
any of its Subsidiaries against fluctuations in currency.
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c)
all obligations of such Person under conditional sale or other title
retention agreements relating to property purchased by such Person to the
extent of the value of such property (other than customary reservations or
retentions of title under agreements with suppliers entered into in the
ordinary course of business), (d) all obligations, other than intercompany
items, of such Person issued or assumed as the deferred purchase price of
property or services purchased by such Person which would appear as
liabilities on a balance sheet of such Person, (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on, 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, (f) all Guaranty Obligations of such
10
Person, (g) the principal portion of all obligations of such Person under
(i) Capital Leases and (ii) any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing
product where such transaction is considered borrowed money indebtedness
for tax purposes but is classified as an operating lease in accordance with
GAAP (collectively, "TROLS"), (h) all obligations of such Person in
-----
respect of interest rate protection agreements, foreign currency exchange
agreements, or other interest or exchange rate or commodity price hedging
agreements, (i) the maximum amount of all performance and standby letters
of credit issued or bankers' acceptances facilities created for the account
of such Person and, without duplication, all drafts drawn thereunder (to
the extent unreimbursed), (j) all preferred stock issued by such Person and
required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date and (k) the aggregate amount
of uncollected accounts receivable of such Person subject at such time to a
sale of receivables (or similar transaction) regardless of whether such
transaction is effected without recourse to such Person or in a manner that
would not be reflected on the balance sheet of such Person in accordance
with GAAP. The Indebtedness of any Person shall include the Indebtedness of
any partnership or unincorporated joint venture in which such Person is
legally obligated or has a reasonable expectation of being liable with
respect thereto. Indebtedness shall not include (i) "teaming agreements"
pursuant to which the Borrower or any of its Subsidiaries shall agree with
another supplier of services to provide services (including the sale of
inventory) to a third person and pursuant to such agreement shall be
responsible to the third Person for the performance of the obligations of
such other supplier, (ii) warranty claims, (iii) product guarantees, (iv)
guarantees by a Person of obligations not constituting Indebtedness of the
Borrower or any of its Subsidiaries and (v) obligations under joint
development agreements pursuant to which the Borrower and any of its
Subsidiaries agree to develop a product.
"Indenture" means that certain Indenture dated as of February 29, 1996
---------
among Xxxxx, Inc. (f/k/a T.K.G. Acquisition Sub, Inc.) as issuer, the
guarantors named therein and IBJ Xxxxxxxx Bank & Trust Company, as trustee,
as the same may be modified, supplemented or amended from time to time.
"Initial Shareholders" means the Persons on Schedule 1.1(c).
-------------------- ---------------
"Insignificant Subsidiary" means any Subsidiary of the Borrower that
------------------------
(a) has assets of less than $2,500,000 and (b) for the most recent fiscal
year of the Borrower, accounted for less than 3% of the consolidated
revenues of the Borrower and its Subsidiaries.
"Interest Expense" means, for any period, with respect to the Borrower
----------------
and its Subsidiaries on a consolidated basis, all net interest expense,
including the interest component under Capital Leases, as determined in
accordance with GAAP; it being understood that Interest Expense shall, at
the option of the Borrower, include the amortized cost of any interest rate
protection agreements, foreign exchange contracts, currency swap agreements
or other similar agreements or arrangements designed to protect the
Borrower or any of its Subsidiaries against fluctuations in currency
values, to the extent permitted by GAAP.
11
"Interest Payment Date" means (a) as to Base Rate Loans, the last day
---------------------
of each fiscal quarter of the Borrower and the Revolving Loan Maturity
Date, (b) as to Eurodollar Loans, the last day of each applicable Interest
Period and the Revolving Loan Maturity Date, and in addition where the
applicable Interest Period for a Eurodollar Loan is greater than three
months, then also the date three months from the beginning of the Interest
Period and each three months thereafter and (c) as to Competitive Bid
Loans, the last day of the Interest Period applicable to such Loan and the
Revolving Loan Maturity Date; provided, that if the Interest Period for a
Competitive Bid Loan is greater than 90 days, then also the last day of
each fiscal quarter of the Borrower.
"Interest Period" means (i) as to Eurodollar Loans, a period of one,
---------------
two, three or six months' duration, as the Borrower may elect, commencing,
in each case, on the date of the borrowing (including continuations and
conversions thereof) and (ii) with respect to Competitive Bid Loans, a
period commencing on the date of the borrowing and ending on the date
specified in the applicable Competitive Bid whereby the offer to make such
Competitive Loan was extended (such ending date in any event to be not less
than 7 nor more than 180 days from the date of borrowing); provided,
--------
however, (a) if any Interest Period would end on a day which is not a
-------
Business Day, such Interest Period shall be extended to the next succeeding
Business Day (except that 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 Revolving Loan
Maturity Date and (c) in the case of Eurodollar Loans, 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 Business Day of such calendar month.
Notwithstanding the above, for the first 30 days subsequent to the Closing
Date, the Borrower may not, without the consent of the Agents, request any
Interest Period other than a one month Interest Period for any Eurodollar
Loans.
"Investment" means (a) the acquisition (whether for cash, property,
----------
services, assumption of Indebtedness, securities or otherwise) of assets,
shares of capital stock, bonds, notes, debentures, partnership, joint
ventures or other ownership interests or other securities of any Person or
(b) any deposit with, or advance, loan or other extension of credit to,
such Person (other than deposits made in connection with the purchase of
equipment or other assets in the ordinary course of business) or (c) any
other capital contribution to or investment in such Person, including,
without limitation, any Guaranty Obligation (including any support for a
Letter of Credit issued on behalf of such Person) incurred for the benefit
of such Person.
"Issuing Lender" means NationsBank, N.A.
--------------
"Issuing Lender Fees" has the meaning set forth in Section 3.4(b).
-------------------
"Lender" means any of the Persons identified as a "Lender" on the
------
signature pages hereto, and any Person which may become a Lender by way of
assignment in accordance with the terms hereof, together with their
successors and permitted assigns.
12
"Letter of Credit" means (i) a Letter of Credit issued for the account
----------------
of the Borrower by the Issuing Lender pursuant to Section 2.2, as such
Letter of Credit may be amended, modified, extended, renewed or replaced
and (ii) any Existing Letters of Credit.
"Letter of Credit Fee" shall have the meaning assigned to such term in
--------------------
Section 3.4(b).
"Leverage Ratio" means, as of the end of each fiscal quarter of the
--------------
Borrower, with respect to the Borrower and its Subsidiaries on a
consolidated basis, the ratio of (a) Funded Debt on such date to (b) EBITDA
for the twelve month period ending on such date.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind, including, without limitation,
any agreement to give any of the foregoing, any conditional sale or other
title retention agreement, and any lease in the nature thereof.
"Loan" or "Loans" means the Revolving Loans, the Swing Line Loans and
---- -----
the Competitive Bid Loans, individually or collectively, as appropriate.
"LOC Documents" means, with respect to any Letter of Credit, such
-------------
Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in application
or applicable only to such Letter of Credit) governing or providing for (a)
the rights and obligations of the parties concerned or at risk or (b) any
collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (a) the maximum
---------------
amount which is, or at any time thereafter may become, available to be
drawn under Letters of Credit then outstanding, assuming compliance with
all requirements for drawings referred to in such Letters of Credit plus
----
(b) the aggregate amount of all drawings under Letters of Credit honored by
an Issuing Lender but not theretofore reimbursed.
"LOC Participants" means the Lenders.
----------------
"London Interbank Offered Rate" means, with respect to any Eurodollar
-----------------------------
Loan for the Interest Period applicable thereto, the rate of interest per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Telerate Page 3750 (or any successor 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 rate is specified on Telerate Page 3750, the applicable rate shall be
the arithmetic mean of all such rates. If, for any reason, such rate is
not available, the term "London Interbank Offered Rate" shall mean, with
-----------------------------
respect to any Eurodollar Loan for the Interest Period applicable thereto,
the rate of interest per annum (rounded upwards, if necessary, to the
13
nearest 1/100 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 rate is specified on Reuters Screen LIBO Page, the applicable
rate shall be the arithmetic mean of all such rates.
"Management" means any current or former officer, director or employee
----------
of the Borrower; provided that with respect to former officers, directors
or employees, any stock or option in question must have been earned or
received while such Person was an officer, director or employee.
"Mandatory Borrowing" has the meaning set forth in Section 2.2(e).
-------------------
"Material Adverse Effect" means a material adverse effect, after
-----------------------
taking into account any applicable insurance and any applicable
indemnification (to the extent the provider of such insurance or
indemnification has the financial ability to support its obligations with
respect thereto and is not disputing or refusing to acknowledge same), on
(a) the operations, financial condition or business of the Borrower and its
Subsidiaries taken as a whole, (b) the ability of the Borrower to perform
its obligations under this Credit Agreement or any of the other Credit
Documents, or (c) the validity or enforceability of this Credit Agreement,
any of the other Credit Documents, or the rights and remedies of the
Lenders hereunder or thereunder taken as a whole.
"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 covered by Title IV of ERISA which
------------------
is a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of ERISA,
----------------------
other than a Multiemployer Plan, which the Borrower or any of its
Subsidiaries or any ERISA Affiliate and at least one employer other than
the Borrower or any of its Subsidiaries or any ERISA Affiliate are
contributing sponsors.
"Net Income" means, for any period, the net income after taxes for
----------
such period of the Borrower and its Subsidiaries on a consolidated basis,
as determined in accordance with GAAP.
"Non-Cash Charges" means, for any period, with respect to the Borrower
----------------
and its Subsidiaries on a consolidated basis, all depreciation,
amortization and other non-cash charges (excluding any non-cash charges
that require an accrual or reserve for cash charges for any future period,
other than accruals for future retiree medical obligations made pursuant to
SFAS Xx. 00, Xx. 000 and No. 106, as amended or modified).
"Non-Excluded Taxes" has the meaning set forth in Section 3.14.
------------------
14
"Note" or "Notes" means the Revolving Loan Notes, the Competitive Bid
---- -----
Loan Notes and the Swing Line Notes, individually or collectively, as
appropriate.
"Notice of Borrowing" means a request by the Borrower for a Revolving
-------------------
Loan, in the form of Exhibit 2.1.
-----------
"Notice of Continuation/Conversion" means a request by the Borrower to
---------------------------------
continue an existing Eurodollar Loan to a new Interest Period or to convert
a Eurodollar Loan to a Base Rate Loan or a Base Rate Loan to a Eurodollar
Loan, in the form of Exhibit 2.5.
-----------
"Participation Interest" means the Extension of Credit by a Lender by
----------------------
way of a purchase of a participation in Letters of Credit or LOC
Obligations as provided in Section 2.2, in Swing Line Loans as provided in
Section 2.4(c) or in any Loans as provided in Section 3.9.
"PBGC" means the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA and any successor thereto.
"Permitted Acquisition" means the acquisition of (a) all of the
---------------------
capital stock of another Person or (b) all or substantially all of the
assets of another Person; provided that (i) the capital stock or Person
acquired in such acquisition relates to a line of business similar to the
business of the Borrower engaged in on the Closing Date and (ii) no Default
or Event of Default exists and is continuing.
"Permitted Investments" means Investments which are (a) cash or Cash
---------------------
Equivalents, (b) accounts receivable created, acquired or made in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms or otherwise in the prudent judgment of the Borrower,
(c) inventory, raw materials and general intangibles acquired in the
ordinary course of business, (d) loans to directors, officers, employees,
agents, customers or suppliers in the ordinary course of business for
reasonable business expenses, not to exceed in the aggregate $5,000,000 at
any one time, (e) the Investments set forth on Schedule 7.6, (f)
------------
Investments in a Subsidiary of the Borrower as long as such Investment
would not cause a violation of Section 6.11(b), (g) Investments in
Permitted Acquisitions, (h) Investments in Capital Expenditures, (i)
Investments made as a result of the receipt of non-cash consideration from
an Asset Disposition permitted by this Credit Agreement, (j) Investments in
dealers and customers in the ordinary course of business, (k) Investments
in dealers and customers received in connection with any bankruptcy or
reorganization of such dealer or customer as a result of an Investment
previously made in such dealer or customer in accordance with the
provisions of clause (j), (l) Investments comprised of progress payments to
suppliers and (m) Investments not otherwise permitted by the other clauses
of this definition not to exceed $5,000,000, in the aggregate, at any one
time outstanding.
"Permitted Liens" means (a) Liens for taxes not yet due or Liens for
---------------
taxes being contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been established
(and as to which the property
15
subject to any such Lien is not yet subject to foreclosure, sale or loss on
account thereof), (b) Liens in respect of property imposed by law arising
in the ordinary course of business such as materialmen's, mechanics',
warehousemen's, carrier's, landlords' and other nonconsensual statutory
Liens which are not yet due and payable, which have been in existence less
than 90 days or which are being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance with GAAP
have been established (and as to which the property subject to any such
Lien is not yet subject to foreclosure, sale or loss on account thereof),
(c) pledges or deposits made in the ordinary course of business to secure
payment of worker's compensation insurance, unemployment insurance,
pensions or social security programs, (d) Liens arising from good faith
deposits in connection with or to secure performance of tenders, bids,
leases, government contracts, performance and return-of-money bonds and
other similar obligations incurred in the ordinary course of business
(other than obligations in respect of the payment of borrowed money), (e)
Liens arising from good faith deposits in connection with or to secure
performance of statutory obligations and surety and appeal bonds, (f)
easements, rights-of-way, restrictions (including zoning restrictions),
minor defects or irregularities in title and other similar charges or
encumbrances not, in any material respect, impairing the use of the
encumbered property for its intended purposes, (g) judgment Liens that
would not constitute an Event of Default, (h) Liens in connection with
Indebtedness allowed under Section 7.1(f) and, to the extent applicable,
Section 7.12, (i) Liens arising by virtue of any statutory or common law
provision relating to banker's liens, rights of setoff or similar rights as
to deposit accounts or other funds maintained with a creditor depository
institution, (j) Liens existing on the date hereof and identified on
Schedule 7.2; provided that no such Lien shall extend to any property other
------------
than the property subject thereto on the Closing Date and (k) Liens on real
property, equipment and fixtures acquired in connection with a Permitted
Acquisition; provided that (A) such Lien shall have existed at the time
such Permitted Acquisition was consummated, (B) such Lien was not incurred
in anticipation thereof and (C) such Liens, in the aggregate, do not secure
Indebtedness in excess of $10,000,000 aggregate principal amount at any one
time outstanding.
"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) which is covered by ERISA and with respect to which the Borrower or
any of its Subsidiaries 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 per annum rate of interest established from
----------
time to time by the Administrative Agent at its principal office in
Charlotte, North Carolina (or such other principal office of the
Administrative Agent as communicated in writing to the Borrower and the
Lenders) as its Prime Rate. Any change in the interest rate resulting from
a change in the Prime Rate shall become effective as of 12:01 a.m. of the
Business Day on which each change in the Prime Rate is announced by the
Administrative Agent. The
16
Prime Rate is a reference rate used by the Administrative Agent in
determining interest rates on certain loans and is not intended to be the
lowest rate of interest charged on any extension of credit to any debtor.
"Real Properties" shall have the meaning set forth in Section 5.18
---------------
hereof.
"Regulation D, G, U, or X" means Regulation D, G, 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 a "reportable event" as defined in Section
----------------
4043 of ERISA with respect to which the notice requirements to the PBGC
have not been waived.
"Required Lenders" means Lenders whose aggregate Credit Exposure (as
----------------
hereinafter defined) constitutes at least 51% of the Credit Exposure of all
Lenders at such time; provided, however, that if any Lender shall be a
Defaulting Lender at such time then there shall be excluded from the
determination of Required Lenders the aggregate principal amount of Credit
Exposure of such Lender at such time. For purposes of the preceding
sentence, the term "Credit Exposure" as applied to each Lender shall mean
(a) at any time prior to the termination of the Commitments, the Revolving
Commitment Percentage of such Lender multiplied by the Revolving Committed
Amount and (b) at any time after the termination of the Commitments, the
sum of (i) the principal balance of the outstanding Loans of such Lender
plus (ii) such Lender's Participation Interests in the face amount of the
outstanding Letters of Credit and Swing Line Loans.
"Requirement of Law" means, as to any Person, the articles or
------------------
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation
or final, non-appealable determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or to which any of its material property is subject.
"Revolving Committed Amount" means TWO HUNDRED SEVENTY-FIVE MILLION
--------------------------
DOLLARS ($275,000,000) or such lesser amount as the Revolving Committed
Amount may be reduced pursuant to Section 2.1(d) or Section 3.3(c).
"Revolving Loan Commitment Percentage" means, for each Lender, the
------------------------------------
percentage identified as its Revolving Commitment Percentage on Schedule
--------
1.1(a), as such percentage may be modified in connection with any
------
assignment made in accordance with the provisions of Section 10.3.
"Revolving Loans" means the Revolving Loans made to the Borrower
---------------
pursuant to Section 2.1.
"Revolving Loan Maturity Date" means August 8, 2002.
----------------------------
"Revolving Note" or "Revolving Notes" means the promissory notes of
-------------- ---------------
the Borrower in favor of each of the Lenders evidencing the Revolving Loans
provided
17
pursuant to Section 2.1, individually or collectively, as
appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time and as
evidenced in the form of Exhibit 2.1(e).
--------------
"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.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations promulgated thereunder.
"Single Employer Plan" means any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan.
"Solvent" means, with respect to any Person as of a particular date,
-------
that on such date (a) such Person is able to pay its debts and other
liabilities, contingent obligations and other commitments as they mature in
the normal course of business, (b) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature in their ordinary
course, (c) such Person is not engaged in a business or a transaction, and
is not about to engage in a business or a transaction, for which such
Person's assets would constitute unreasonably small capital after giving
due consideration to the prevailing practice in the industry in which such
Person is engaged or is to engage, (d) the fair value of the assets of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person and (e) the present fair
saleable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured. In computing the amount of
contingent liabilities at any time, it is intended that such liabilities
will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Subordinated Debt" means the Indebtedness evidenced by the Indenture
-----------------
or by the guarantees thereof in the original amount of $165 million.
"Subsidiary" means, as to any Person, (a) any corporation more than
----------
50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (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) is at the time owned by such Person
directly or indirectly through Subsidiaries, and (b) any partnership,
association, joint venture or other entity in which such person directly or
indirectly through Subsidiaries has more than a 50% equity interest at any
time.
"Swing Line Loans" means the loans made by NationsBank pursuant to
----------------
Section 2.4.
18
"Swing Line Committed Amount" means Ten Million Dollars ($10,000,000).
---------------------------
"Swing Line Loan Request" means a request by the Borrower for a Swing
-----------------------
Line Loan in substantially the form of Exhibit 2.4(b).
--------------
"Swing Line Loan Note" means the promissory note of the Borrower in
--------------------
favor of NationsBank evidencing the Swing Line Loans provided pursuant to
Section 2.4, as such promissory note may be amended, modified,
supplemented, extended, renewed or replaced from time to time in and as
evidenced by the form of Exhibit 2.4(e).
--------------
"Termination Event" means (a) with respect to any Single Employer
-----------------
Plan, the occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (b) the
withdrawal of the Borrower or any of its Subsidiaries 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; (c) 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; (d) the
institution of proceedings to terminate or the actual termination of a Plan
by the PBGC under Section 4042 of ERISA; (e) any event or condition which
might reasonably constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan; or
(f) the complete or partial withdrawal of the Borrower or any of its
Subsidiaries or any ERISA Affiliate from a Multiemployer Plan.
"TROLS" has the meaning set forth in the definition of Indebtedness.
-----
"Unused Commitment" means, for any period, the amount by which (a) the
-----------------
then applicable aggregate Revolving Committed Amount exceeds (b) the daily
average sum for such period of the outstanding aggregate principal amount
of all Revolving Loans plus the aggregate amount of LOC Obligations
outstanding.
"Voting Stock" of a corporation means all classes of the capital stock
------------
of such corporation then outstanding and normally entitled to vote in the
election of directors.
1.2 Computation of Time Periods and Other Definitional Provisions.
-------------------------------------------------------------
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." References in this Agreement to "Articles", "Sections", "Schedules"
or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits of or to
this Agreement unless otherwise specifically provided.
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 financial statements delivered to the Lenders hereunder shall be
19
accompanied by a statement from the Borrower that GAAP has not changed since the
most recent financial statements delivered by the Borrower to the Lenders or if
GAAP has changed describing such changes in detail and explaining how such
changes affect the financial statements. 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 (or, prior to the delivery of the first
financial statements pursuant to Section 6.1, consistent with the financial
statements described in Section 4.1(c)); 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) either the Administrative Agent or the
Required Lenders shall so object in writing within 60 days after delivery of
such financial statements (or after the Lenders have been informed of the change
in GAAP affecting such financial statements, if later), 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 Revolving Loans.
---------------
(a) Revolving Loan Commitment. Subject to the terms and conditions
-------------------------
set forth herein, each Lender severally agrees to make revolving loans
(each a "Revolving Loan" and collectively the "Revolving Loans") to the
-------------- ---------------
Borrower, in Dollars, at any time and from time to time, during the period
from and including the Effective Date to but not including the Revolving
Loan Maturity Date (or such earlier date if the Revolving Committed Amount
has been terminated as provided herein); provided, however, that (i) the
-------- -------
sum of the aggregate amount of Revolving Loans outstanding plus the
aggregate amount of LOC Obligations outstanding plus the aggregate amount
of Swing Line Loans outstanding plus the aggregate amount of Competitive
Bid Loans outstanding shall not exceed the Revolving Committed Amount and
(ii) with respect to each individual Lender, the Lender's pro rata share of
outstanding Revolving Loans plus such Lender's pro rata share of
outstanding LOC Obligations plus (other than NationsBank) such Lender's pro
rata share of Swing Line Loans outstanding shall not exceed such Lender's
Revolving Loan Commitment Percentage of the Revolving Committed Amount.
Subject to the terms of this Credit Agreement (including Section 3.3), the
Borrower may borrow, repay and reborrow Revolving Loans.
(b) Method of Borrowing for Revolving Loans. By no later than 11:00
---------------------------------------
a.m. (i) on the date of the requested borrowing of Revolving Loans that
will be Base Rate Loans or (ii) three Business Days prior to the date of
the requested borrowing of Revolving Loans that will be Eurodollar Loans,
the Borrower shall submit a written Notice of Borrowing in the form of
Exhibit 2.1 to the Administrative Agent setting forth (A) the amount
-----------
requested, (B) whether such Revolving Loans shall accrue interest at the
Adjusted Base Rate or the Adjusted Eurodollar Rate, (C) with respect to
Revolving Loans that will
20
be Eurodollar Loans, the Interest Period applicable thereto and (D)
certification that the Borrower has complied in all respects with Section
4.2. All Revolving Loans on the Effective Date shall be Base Rate Loans.
Thereafter, all or any portion of the Revolving Loans may be converted into
Eurodollar Loans in accordance with the terms of Section 2.5;
(c) Funding of Revolving Loans. Upon receipt of a Notice of
--------------------------
Borrowing, the Administrative Agent shall promptly inform the applicable
Lenders as to the terms thereof. Each such Lender shall make its Revolving
Loan Commitment Percentage of the requested Revolving Loans available to
the Administrative Agent by 1:00 p.m. on the date specified in the Notice
of Borrowing by deposit, in Dollars, of immediately available funds at the
offices of the Administrative Agent at its principal office in Charlotte,
North Carolina or at such other address as the Administrative Agent may
designate in writing. The amount of the requested Revolving Loans will
then be made available to the Borrower by the Administrative Agent by
crediting the account of the Borrower on the books of such office of the
Administrative Agent, to the extent the amount of such Revolving Loans are
made available to the Administrative Agent.
No Lender shall be responsible for the failure or delay by any other
Lender in its obligation to make Revolving Loans 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 by any Lender
prior to the date of any such Revolving Loan that such Lender does not
intend to make available to the Administrative Agent its portion of the
Revolving Loans to be made on such date, the Administrative Agent may
assume that such Lender has made such amount available to the
Administrative Agent on the date of such Revolving Loans, and the
Administrative Agent in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) make available to the
Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent, the Administrative Agent
shall be able to recover such corresponding amount from such Lender. If
such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent will
promptly notify the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover from the Lender or the Borrower, as the
case may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding amount
is recovered by the Administrative Agent at a per annum rate equal to (i)
from the Borrower at the applicable rate for such Revolving Loan pursuant
to the Notice of Borrowing and (ii) from a Lender at the Federal Funds
Rate.
(d) Reductions of Revolving Committed Amount. Upon at least three
----------------------------------------
Business Days' notice, the Borrower shall have the right to permanently
terminate or reduce the aggregate unused amount of the Revolving Committed
Amount at any time or from time to time; provided that (i) each partial
reduction shall be in an aggregate amount at least equal to $5,000,000 and
in integral multiples of $1,000,000 above such amount
21
and (ii) no reduction shall be made which would reduce the Revolving
Committed Amount to an amount less than the aggregate amount of outstanding
Revolving Loans plus the aggregate amount of outstanding LOC Obligations
plus the aggregate amount of Swing Line Loans outstanding plus the
aggregate amount of Competitive Bid Loans outstanding. Any reduction in (or
termination of) the Revolving Committed Amount shall be permanent and may
not be reinstated.
(e) Revolving Loan Notes. The Revolving Loans made by each Lender
--------------------
shall be evidenced by a duly executed promissory note of the Borrower to
each applicable Lender in the face amount of its Revolving Loan Commitment
Percentage of the Revolving Committed Amount in substantially the form of
Exhibit 2.1(e).
--------------
2.2. Letter of Credit Subfacility.
----------------------------
(a) Issuance. Subject to the terms and conditions hereof and of the
--------
LOC Documents, if any, and any other terms and conditions which the Issuing
Lender may reasonably require (so long as such terms and conditions do not
impose any financial obligation on or require any Lien (not otherwise
contemplated by this Credit Agreement) to be given by the Borrower or
conflict with any obligation of, or detract from any action which may be
taken by the Borrower under this Credit Agreement), the Issuing Lender
shall from time to time upon request issue, in Dollars, and the LOC
Participants shall participate in, letters of credit (the "Letters of
----------
Credit") for the account of the Borrower or any of its Subsidiaries, from
------
the Effective Date until the Revolving Loan Maturity Date, in a form
reasonably acceptable to the Issuing Lender; provided, however, that (i)
-------- -------
the aggregate amount of LOC Obligations shall not at any time exceed TWENTY
MILLION DOLLARS ($20,000,000), (ii) the sum of the aggregate amount of LOC
Obligations outstanding plus Revolving Loans outstanding plus Swing Line
Loans outstanding plus Competitive Bid Loans outstanding shall not exceed
the Revolving Committed Amount and (iii) with respect to each individual
LOC Participant, the LOC Participant's pro rata share of outstanding
Revolving Loans plus its pro rata share of outstanding LOC Obligations
shall not exceed such LOC Participant's Revolving Loan Commitment
Percentage of the Revolving Committed Amount. The issuance and expiry date
of each Letter of Credit shall be a Business Day. Except as otherwise
expressly agreed upon by all the LOC Participants, no Letter of Credit
shall have an original expiry date more than one year from the date of
issuance, or as extended, shall have an expiry date extending beyond the
Revolving Loan Maturity Date. Each Letter of Credit shall be either (x) a
standby letter of credit issued to support the obligations (including
pension or insurance obligations), contingent or otherwise, of the Borrower
or any of its Subsidiaries, or (y) a commercial letter of credit in respect
of the purchase of goods or services by the Borrower or any of its
Subsidiaries in the ordinary course of business. Each Letter of Credit
shall comply with the related LOC Documents.
(b) Notice and Reports. The request for the issuance of a Letter of
------------------
Credit shall be submitted to the Issuing Lender at least three Business
Days prior to the requested date of issuance. The Issuing Lender will, at
least quarterly and more frequently upon request, provide to the
Administrative Agent for dissemination to the Lenders a detailed report
22
specifying the Letters of Credit which are then issued and outstanding and
any activity with respect thereto which may have occurred since the date of
the prior report, and including therein, among other things, the account
party, the beneficiary, the face amount, and the expiry date as well as any
payments or expirations which may have occurred. The Issuing Lender will
further provide to the Administrative Agent, promptly upon request, copies
of the Letters of Credit.
(c) Participations.
--------------
(i) On the Effective Date, each LOC Participant shall
automatically acquire a participation in the liability of the Issuing
Lender under each Existing Letter of Credit in an amount equal to its
Revolving Loan Commitment Percentage of such Existing Letters of
Credit. Each Existing Letter of Credit shall be deemed for all
purposes of this Credit Agreement and the other Credit Documents to be
a Letter of Credit.
(ii) Each LOC Participant, upon issuance of a Letter of Credit,
shall be deemed to have purchased without recourse a risk
participation from the Issuing Lender in such Letter of Credit and the
obligations arising thereunder and any collateral relating thereto, in
each case in an amount equal to its Revolving Loan Commitment
Percentage of the obligations under such Letter of Credit, and shall
absolutely, unconditionally and irrevocably assume, as primary obligor
and not as surety, and be obligated to pay to the Issuing Lender
therefor and discharge when due, its Revolving Loan Commitment
Percentage of the obligations arising under such Letter of Credit.
Without limiting the scope and nature of each LOC Participant's
participation in any Letter of Credit, to the extent that the Issuing
Lender has not been reimbursed as required hereunder or under any such
Letter of Credit, each such LOC Participant shall pay to the Issuing
Lender its Revolving Loan Commitment Percentage of such unreimbursed
drawing in same day funds on the day of notification by the Issuing
Lender of an unreimbursed drawing pursuant to the provisions of
subsection (d) hereof. The obligation of each LOC Participant to so
reimburse the Issuing Lender shall be absolute and unconditional and
shall not be affected by the occurrence of a Default, an Event of
Default or any other occurrence or event. Any such reimbursement
shall not relieve or otherwise impair the obligation of the Borrower
to reimburse the Issuing Lender under any Letter of Credit, together
with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of
-------------
Credit, the Issuing Lender will promptly notify the Borrower. Unless the
Borrower shall immediately notify the Issuing Lender of its intent to
otherwise reimburse the Issuing Lender, the Borrower shall be deemed to
have requested a Revolving Loan at the Adjusted Base Rate in the amount of
the drawing as provided in subsection (e) hereof, the proceeds of which
will be used to satisfy the reimbursement obligations. The Borrower shall
reimburse the Issuing Lender on the day of drawing under any Letter of
Credit either with the proceeds of a Revolving Loan obtained hereunder or
otherwise in same day funds as provided herein or in the LOC Documents. If
the Borrower shall fail to reimburse the
23
Issuing Lender as provided hereinabove, the unreimbursed amount of such
drawing shall bear interest at a per annum rate equal to the Base Rate plus
the Applicable Percentage for the Base Rate Loans that are Revolving Loans
plus two percent (2%). The Borrower's reimbursement obligations hereunder
shall be absolute and unconditional under all circumstances irrespective of
(but without waiver of) any rights of set-off, counterclaim or defense to
payment that the applicable account party or the Borrower may claim or have
against the Issuing Lender, the Agents, the Lenders, the beneficiary of the
Letter of Credit drawn upon or any other Person, including without
limitation, any defense based on any failure of the applicable account
party or the Borrower to receive consideration or the legality, validity,
regularity or unenforceability of the Letter of Credit. The Issuing Lender
will promptly notify the LOC Participants of the amount of any unreimbursed
drawing and each LOC Participant shall promptly pay to the Administrative
Agent for the account of the Issuing Lender, in Dollars and in immediately
available funds, the amount of such LOC Participant's Revolving Loan
Commitment Percentage of such unreimbursed drawing. Such payment shall be
made on the day such notice is received by such Lender from the Issuing
Lender if such notice is received at or before 2:00 p.m., otherwise such
payment shall be made at or before 12:00 Noon on the Business Day next
succeeding the day such notice is received. If such LOC Participant does
not pay such amount to the Issuing Lender in full upon such request, such
LOC Participant shall, on demand, pay to the Administrative Agent for the
account of the Issuing Lender interest on the unpaid amount during the
period from the date the LOC Participant received the notice regarding the
unreimbursed drawing until such LOC Participant pays such amount to the
Issuing Lender in full at a rate per annum equal to, if paid within two
Business Days of the date of drawing, the Federal Funds Rate and thereafter
at a rate equal to the Base Rate. Each LOC Participant's obligation to make
such payment to the Issuing Lender, and the right of the Issuing Lender to
receive the same, shall be absolute and unconditional, shall not be
affected by any circumstance whatsoever and without regard to the
termination of this Credit Agreement or the Commitments hereunder, the
existence of a Default or Event of Default or the acceleration of the
obligations hereunder and shall be made without any offset, abatement,
withholding or reduction whatsoever. Simultaneously with the making of each
such payment by a LOC Participant to the Issuing Lender, such LOC
Participant shall, automatically and without any further action on the part
of the Issuing Lender or such LOC Participant, acquire a participation in
an amount equal to such payment (excluding the portion of such payment
constituting interest owing to the Issuing Lender) in the related
unreimbursed drawing portion of the LOC Obligation and in the interest
thereon and in the related LOC Documents, and shall have a claim against
the Borrower with respect thereto.
(e) Repayment with Revolving Loans. On any day on which the Borrower
------------------------------
shall have requested, or been deemed to have requested, a Revolving Loan
borrowing to reimburse a drawing under a Letter of Credit, the
Administrative Agent shall give notice to the applicable Lenders that a
Revolving Loan has been requested or deemed requested in connection with a
drawing under a Letter of Credit, in which case a Revolving Loan borrowing
comprised solely of Base Rate Loans (each such borrowing, a "Mandatory
---------
Borrowing") shall be immediately made from all applicable Lenders (without
---------
giving effect
24
to any termination of the Commitments pursuant to Section 8.2)
pro rata based on each Lender's respective Revolving Loan Commitment
--- ----
Percentage and the proceeds thereof shall be paid directly to the Issuing
Lender for application to the respective LOC Obligations. Each such Lender
hereby irrevocably agrees to make such Revolving Loans immediately upon any
such request or deemed request on account of each such Mandatory Borrowing
in the amount and in the manner specified in the preceding sentence and on
the same such date notwithstanding (i) the amount of Mandatory Borrowing
---------------
may not comply with the minimum amount for borrowings of Revolving Loans
otherwise required hereunder, (ii) whether any conditions specified in
Section 4 are then satisfied, (iii) whether a Default or Event of Default
then exists, (iv) failure of any such request or deemed request for
Revolving Loans to be made by the time otherwise required hereunder, (v)
the date of such Mandatory Borrowing, or (vi) any reduction in the
Revolving Committed Amount or any termination of the Commitments. In the
event that any Mandatory Borrowing cannot for any reason be made on the
date otherwise required above (including, without limitation, as a result
of the commencement of a proceeding under the Bankruptcy Code with respect
to the Borrower), then each such Lender hereby agrees that it shall
forthwith fund (as of the date the Mandatory Borrowing would otherwise have
occurred, but adjusted for any payments received from the Borrower on or
after such date and prior to such purchase) its Participation Interest in
the outstanding LOC Obligations; provided, further, that in the event any
-------- -------
Lender shall fail to fund its Participation Interest on the day the
Mandatory Borrowing would otherwise have occurred, then the amount of such
Lender's unfunded Participation Interest therein shall bear interest
payable to the Issuing Lender upon demand, at the rate equal to, if paid
within two Business Days of such date, the Federal Funds Rate, and
thereafter at a rate equal to the Base Rate.
(f) Designation of Subsidiaries as Account Parties. Notwithstanding
----------------------------------------------
anything to the contrary set forth in this Credit Agreement, a Letter of
Credit issued hereunder may contain a statement to the effect that such
Letter of Credit is issued for the account of a Subsidiary of the Borrower;
provided that notwithstanding such statement, the Borrower shall be the
actual account party for all purposes of this Credit Agreement for such
Letter of Credit and such statement shall not affect the Borrower's
reimbursement obligations hereunder with respect to such Letter of Credit.
(g) Modification and Extension. The issuance of any supplement,
--------------------------
modification, amendment, renewal, or extensions to any Letter of Credit
shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may have the
-----------------------------
Letters of Credit be subject to The Uniform Customs and Practice for
Documentary Credits, as published as of the date of issue by the
International Chamber of Commerce (Publication No. 500 or the most recent
publication, the "UCP"), in which case the UCP may be incorporated therein
---
and deemed in all respects to be a part thereof.
25
(i) Responsibility of Issuing Lender. It is expressly understood and
--------------------------------
agreed that the obligations of the Issuing Lender hereunder to the LOC
Participants are only those expressly set forth in this Credit Agreement
and that the Issuing Lender shall be entitled to assume that the conditions
precedent set forth in Section 4 have been satisfied unless it shall have
acquired actual knowledge that any such condition precedent has not been
satisfied; provided, however, that nothing set forth in this Section 2.2
shall be deemed to prejudice the right of any LOC Participant to recover
from the Issuing Lender any amounts made available by such LOC Participant
to the Issuing Lender pursuant to this Section 2.2 in the event that it is
determined by a court of competent jurisdiction that the payment with
respect to a Letter of Credit constituted gross negligence or willful
misconduct on the part of the Issuing Lender.
(j) Conflict with LOC Documents. In the event of any conflict
---------------------------
between this Credit Agreement and any LOC Document, this Credit Agreement
shall govern.
(k) Indemnification of Issuing Lender.
---------------------------------
(i) In addition to its other obligations under this Credit
Agreement, the Borrower hereby agrees to protect, indemnify, pay and
save the Issuing Lender harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) that the Issuing Lender may
incur or be subject to as a consequence, direct or indirect, of (A)
the issuance of any Letter of Credit or (B) the failure of the Issuing
Lender to honor a drawing under a Letter of Credit as a result of any
act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or governmental authority (all
such acts or omissions, herein called "Government Acts").
---------------
(ii) As between the Borrower and the Issuing Lender, the Borrower
shall assume all risks of the acts, omissions or misuse of any Letter
of Credit by the beneficiary thereof. The Issuing Lender shall not be
responsible for: (A) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (B) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, that may
prove to be invalid or ineffective for any reason; (C) failure of the
beneficiary of a Letter of Credit to comply fully with conditions
required in order to draw upon a Letter of Credit; (D) errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or
not they be in cipher; (E) errors in interpretation of technical
terms; (F) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under a Letter of Credit
or of the proceeds thereof; and (G) any consequences arising from
causes beyond the control of the Issuing Lender, including, without
limitation, any Government Acts. None of
26
above shall affect, impair, or prevent the vesting of the Issuing
Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted
by the Issuing Lender, under or in connection with any Letter of
Credit or the related certificates, if taken or omitted in good faith,
shall not put the Issuing Lender under any resulting liability to the
Borrower. It is the intention of the parties that this Credit
Agreement shall be construed and applied to protect and indemnify the
Issuing Lender against any and all risks involved in the issuance of
the Letters of Credit, all of which risks are hereby assumed by the
Borrower, including, without limitation, any and all risks of the acts
or omissions, whether rightful or wrongful, of any present or future
Government Acts. The Issuing Lender shall not, in any way, be liable
for any failure by the Issuing Lender or anyone else to pay any
drawing under any Letter of Credit as a result of any Government Acts
or any other cause beyond the control of the Issuing Lender.
(iv) Nothing in this subsection (k) is intended to limit the
reimbursement obligation of the Borrower contained in this Section
2.2. The obligations of the Borrower under this subsection (k) shall
survive the termination of this Credit Agreement. No act or omission
of any current or prior beneficiary of a Letter of Credit shall in any
way affect or impair the rights of the Issuing Lender to enforce any
right, power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (k), the Borrower shall have no obligation to indemnify the
Issuing Lender in respect of any liability incurred by the Issuing
Lender arising solely out of the gross negligence or willful
misconduct of the Issuing Lender, as determined by a court of
competent jurisdiction. Nothing in this Credit Agreement shall
relieve the Issuing Lender of any liability to the Borrower in respect
of any action taken by the Issuing Lender which action constitutes
gross negligence or willful misconduct of the Issuing Lender or a
violation of the UCP or Uniform Commercial Code (as applicable), as
determined by a court of competent jurisdiction.
2.3. Competitive Bid Loans Subfacility.
---------------------------------
(a) Competitive Bid Loans. Subject to the terms and conditions set
---------------------
forth herein, the Borrower may, from time to time, during the period from
and including the Effective Date to but not including the Revolving Loan
Maturity Date, request and each Lender may, in its sole discretion, agree
to make Competitive Bid Loans in Dollars to the Borrower; provided,
--------
however, that (i) the aggregate principal amount of outstanding Competitive
-------
Bid Loans shall be the lesser of (a) ONE HUNDRED FORTY MILLION DOLLARS
------
($140,000,000) or (b) the Revolving Committed Amount (the "Competitive Bid
---------------
Loan Maximum Amount"), (ii) the sum of the Revolving Loans outstanding plus
-------------------
Competitive Bid Loans outstanding plus Swing Line Loans outstanding plus
the aggregate amount of LOC Obligations outstanding shall not exceed the
Revolving Committed
27
Amount and (iii) if a Lender does make a Competitive Bid Loan it shall not
reduce such Lender's obligation to make its pro rata share of any Revolving
Loan.
(b) Competitive Bid Requests. The Borrower may solicit Competitive
------------------------
Bids by delivery of a Competitive Bid Loan Request to the Administrative
Agent by 10:00 a.m. on a Business Day not less than one nor more than four
Business Days prior to the date of a requested Competitive Bid Loan. A
Competitive Bid Loan Request must (i) be substantially in the form of
Exhibit 2.3(b), (ii) shall specify (A) the date of the requested
--------------
Competitive Bid Loan (which shall be a Business Day), (B) the amount of the
requested Competitive Bid Loan and (C) the applicable Interest Periods
requested, (iii) shall be accompanied by payment of the Competitive Bid
Request Fee unless other procedures are agreed to by the Administrative
Agent and the Borrower for the payment of such fee and (iv) shall comply in
all respects with Section 4.2. The Administrative Agent shall notify the
Lenders of its receipt of a Competitive Bid Request and the contents
thereof and invite the Lenders to submit Competitive Bids in response
thereto. The Borrower may not request a Competitive Bid for more than
three different Interest Periods per Competitive Bid Request and
Competitive Bid Requests may be made no more frequently than once every
five Business Days.
(c) Competitive Bid Procedure. Each Lender may, in its sole
-------------------------
discretion, make one or more Competitive Bids to the Borrower in response
to a Competitive Bid Request. Each Competitive Bid must be received by the
Administrative Agent not later than 10:00 a.m. on the Business Day next
succeeding the date of receipt by the Administrative Agent of the related
Competitive Bid Request; provided, however, that should the Administrative
-------- -------
Agent, in its capacity as a Lender, desire to submit a Competitive Bid it
shall notify the Borrower of its Competitive Bid and the terms thereof not
later than 9:45 a.m. on such date. A Lender may offer to make all or part
of the requested Competitive Bid Loan and may submit multiple Competitive
Bids in response to a Competitive Bid Request. The Competitive Bid must
specify (i) the particular Competitive Bid Request as to which the
Competitive Bid is submitted, (ii) the minimum (which shall be not less
than $1,000,000 and integral multiples of $500,000 in excess thereof) and
maximum principal amounts of the requested Competitive Bid Loan or Loans as
to which the Lender is willing to make and (iii) the applicable interest
rate or rates and Interest Period or Interest Periods therefor. A
Competitive Bid submitted by a Lender in accordance with the provisions
hereof shall be irrevocable. The Administrative Agent shall promptly
notify the Borrower of all Competitive Bids made and the terms thereof and
shall send a copy of each of the Competitive Bids to the Borrower for its
records as soon as practicable.
(d) Acceptance of Competitive Bids. The Borrower may, in its sole
------------------------------
discretion, subject only to the provisions of this subsection (d), accept
or refuse any Competitive Bid offered to it. To accept a Competitive Bid,
the Borrower shall give written notification (or telephonic notice promptly
confirmed in writing) in the form of Exhibit 2.3(d) of its acceptance of
--------------
any or all such Competitive Bids to the Administrative Agent by 11:00 a.m.
on the date on which notice of election to make a Competitive Bid is to be
given to the Administrative Agent by the Lenders; provided, however, (i)
-------- -------
the failure by the Borrower to give timely notice of its acceptance of a
Competitive Bid shall be deemed to be a refusal
28
thereof, (ii) to the extent Competitive Bids are for comparable Interest
Periods, the Borrower may accept Competitive Bids only in ascending order
of rates, (iii) the aggregate amount of Competitive Bids accepted by the
Borrower shall not exceed the principal amount specified in the Competitive
Bid Request, (iv) the Borrower may accept a portion of a Competitive Bid in
the event, and to the extent, acceptance of the entire amount thereof would
cause the Borrower to exceed the principal amount specified in the
Competitive Bid Request, subject however to the minimum amounts provided
herein (and provided that where two or more Lenders submit such a
Competitive Bid at the same Competitive Bid Rate, then pro rata between or
among such Lenders) and (v) no bid shall be accepted for a Competitive Bid
Loan unless such Competitive Bid Loan is in a minimum principal amount of
$5,000,000 and integral multiples of $1,000,000 in excess thereof, except
that where a portion of a Competitive Bid is accepted in accordance with
the provisions of subsection (iv) hereof, then in a minimum principal
amount of $1,000,000 and integral multiples of $500,000 (but not in any
event less than the minimum amount specified in the Competitive Bid), and
in calculating the pro rata allocation of acceptances of portions of
multiple bids at a particular Competitive Bid Rate pursuant to subsection
(iv) hereof, the amounts shall be rounded to integral multiples of $500,000
in a manner which shall be in the discretion of the Borrower. A notice of
acceptance of a Competitive Bid given by the Borrower in accordance with
the provisions hereof shall be irrevocable. The Administrative Agent shall,
not later than 1:00 p.m. on the date of receipt by the Administrative Agent
of a notification from the Borrower of its acceptance or rejection of
Competitive Bid, notify each bidding Lender whether or not its Competitive
Bid has been accepted (and if so, in what amount and at what Competitive
Bid Rate), and each successful bidder will thereupon become bound, subject
to the other applicable conditions hereof, to make the Competitive Bid Loan
in respect of which its bid has been accepted.
(e) Funding of Competitive Bid Loans. Each Lender that is to make a
--------------------------------
Competitive Bid Loan shall make its Competitive Bid Loan available to the
Administrative Agent by 2:00 P.M. on the date specified in the Competitive
Bid Request by deposit in Dollars of immediately available funds at the
office of the Administrative Agent in Charlotte, North Carolina, or at such
other address as the Administrative Agent may designate in writing. The
Administrative Agent will, upon receipt, make the proceeds of such
Competitive Bid Loans available to the Borrower.
(f) Maturity of Competitive Bid Loans. Each Competitive Bid Loan
---------------------------------
shall mature and be due and payable in full on the last day of the Interest
Period applicable thereto, unless accelerated sooner pursuant to Section
8.2. Unless the Borrower shall give notice to the Administrative Agent
otherwise, or a Default or Event of Default exists and is continuing, on
the Business Day prior to the last day of the applicable Interest Period of
a maturing Competitive Bid Loan, the Borrower shall be deemed to have
requested from all of the Lenders Revolving Loans in Dollars in the amount
of such maturing Competitive Bid Loan, accruing interest at the Base Rate,
the proceeds of which will be used to repay such Competitive Bid Loan.
29
(g) Minimum Amounts. Each Competitive Bid Loan shall be in an amount
---------------
not less than $5,000,000 and in integral multiples of $1,000,000 thereof.
(h) Competitive Bid Loan Notes. The Competitive Bid Loans made by
--------------------------
each Lender shall be evidenced by a duly executed promissory note of the
Borrower to such Lender in the original principal amount of the Competitive
Bid Loan Maximum Amount and in substantially the form of Exhibit 2.3(h).
--------------
2.4. Swing Line Loans Subfacility.
----------------------------
(a) Swing Line Loans. NationsBank hereby agrees, on the terms and
----------------
subject to the conditions set forth herein and in the other Credit
Documents, to make loans to the Borrower in Dollars at any time and from
time to time during the period from and including the Effective Date to but
not including the Revolving Loan Maturity Date (each such loan, a "Swing
-----
Line Loan" and collectively, the "Swing Line Loans"); provided that (i) the
--------- ----------------
aggregate principal amount of the Swing Line Loans outstanding at any one
time shall not exceed the Swing Line Committed Amount and (ii) the sum of
Swing Line Loans outstanding plus Revolving Loans outstanding plus
Competitive Bid Loans outstanding plus the aggregate amount of LOC
Obligations outstanding shall not exceed the Revolving Committed Amount.
Prior to the Revolving Loan Maturity Date, Swing Line Loans may be repaid
and reborrowed by the Borrower in accordance with the provisions hereof.
(b) Method of Borrowing and Funding Swing Line Loans. By no later
------------------------------------------------
than 10:00 a.m., on the date of the requested borrowing of Swing Line
Loans, the Borrower shall submit a Swing Line Loan Request to NationsBank
in the form of Exhibit 2.4(b) setting forth (i) the amount of the requested
--------------
Swing Line Loan and (ii) the date of the requested Swing Line Loan and
complying in all respects with Section 4.2. NationsBank shall initiate the
transfer of funds representing the Swing Line Loan advance to the Borrower
by 3:00 p.m. on the Business Day of the requested borrowing.
(c) Repayment and Participations of Swing Line Loans. The Borrower
------------------------------------------------
agrees to repay all Swing Line Loans within one Business Day of demand
therefor by NationsBank. Each repayment of a Swing Line Loan may be
accomplished by requesting Revolving Loans which request is not subject to
the conditions set forth in Section 4.2(b). In the event that the Borrower
shall fail to timely repay any Swing Line Loan, and in any event upon (i) a
request by NationsBank, (ii) the occurrence of an Event of Default
described in Section 8.1(f) or (iii) the acceleration of any Loan or
termination of any Commitment pursuant to Section 8.2, each other Lender
shall irrevocably and unconditionally purchase from NationsBank, without
recourse or warranty, an undivided interest and participation in such Swing
Line Loan in an amount equal to such other Lender's Revolving Loan
Commitment Percentage thereof, by directly purchasing a participation in
such Swing Line Loan in such amount (regardless of whether the conditions
precedent thereto set forth in Section 4.2 hereof are then satisfied,
whether or not the Borrower has submitted a Notice of Borrowing and whether
or not the Commitments are then in effect, any Event of Default exists or
all the Loans have been accelerated) and paying the proceeds thereof to
NationsBank at the address provided in
30
Section 10.1, or at such other address as NationsBank may designate, in
Dollars and in immediately available funds. If such amount is not in fact
made available to NationsBank by any Lender, NationsBank shall be entitled
to recover such amount on demand from such Lender, together with accrued
interest thereon for each day from the date of demand thereof, at the
Federal Funds Rate. If such Lender does not pay such amount forthwith upon
NationsBank's demand therefor, and until such time as such Lender makes the
required payment, NationsBank shall be deemed to continue to have
outstanding Swing Line Loans in the amount of such unpaid participation
obligation for all purposes of the Credit Documents other than those
provisions requiring the other Lenders to purchase a participation therein.
Further, such Lender shall be deemed to have assigned any and all payments
made of principal and interest on its Loans, and any other amounts due to
it hereunder to NationsBank to fund Swing Line Loans in the amount of the
participation in Swing Line Loans that such Lender failed to purchase
pursuant to this Section 2.4(c) until such amount has been purchased (as a
result of such assignment or otherwise).
(d) Minimum Amounts. Each Swing Line Loan shall be in the minimum
---------------
amount of $100,000 and in integral multiples of $50,000 in excess thereof.
(e) Swing Line Note. The Swing Line Loans made by NationsBank shall
---------------
be evidenced by a duly executed promissory note of the Borrower to
NationsBank in the face amount of the Swing Line Committed Amount and in
substantially the form of Exhibit 2.4(e).
--------------
2.5 Continuations and Conversions.
-----------------------------
The Borrower shall have the option, on any Business Day, to continue
existing Eurodollar Loans for a subsequent Interest Period, to convert Revolving
Loans that are Base Rate Loans into Eurodollar Loans or to convert Eurodollar
Loans into Revolving Loans that are Base Rate Loans; provided, however, that (a)
each such continuation or conversion must be requested by the Borrower pursuant
to a written Notice of Continuation/Conversion, in the form of Exhibit 2.5, in
-----------
compliance with the terms set forth below, (b) except as provided in Section
3.12, Eurodollar Loans may only be continued or converted into Revolving Loans
that are Base Rate Loans on the last day of the Interest Period applicable
hereto, (c) after notice from the Administrative Agent or the Required Lenders,
Eurodollar Loans may not be continued nor may Revolving Loans that are Base Rate
Loans be converted into Eurodollar Loans during the existence and continuation
of a Default or Event of Default and (d) any request to extend a Eurodollar Loan
that fails to comply with the terms hereof or any failure to request an
extension of a Eurodollar Loan at the end of an Interest Period shall constitute
a conversion to a Revolving Loan that is a Base Rate Loan on the last day of the
applicable Interest Period. Each continuation or conversion must be requested by
the Borrower no later than 11:00 a.m. (i) the date for a requested conversion of
a Eurodollar Loan to a Revolving Loan that is a Base Rate Loan or (ii) three
Business Days prior to the date for a requested continuation of a Eurodollar
Loan or conversion of a Revolving Loan that is a Base Rate Loan to a Eurodollar
Loan, in each case pursuant to a written Notice of Continuation/Conversion
submitted to the Administrative Agent which shall set forth (A) whether the
Borrower wishes to continue or convert such Loans and (B) if the request is to
continue a
31
Eurodollar Loan or convert a Revolving Loan that is a Base Rate Loan
to a Eurodollar Loan, the Interest Period applicable thereto.
2.6 Minimum Amounts.
---------------
Each request for a borrowing, conversion or continuation shall be subject
to the requirements that (a) each Eurodollar Loan shall be in a minimum amount
of $5,000,000 and in integral multiples of $1,000,000 in excess thereof, (b)
each Base Rate Loan (other than a Swing Line Loan) shall be in a minimum amount
of the lesser of $1,000,000 (an integral multiples of $500,000 in excess
thereof) or the remaining amount available under the Revolving Committed Amount
and (c) no more than ten Eurodollar Loans shall be outstanding hereunder at any
one time. For the purposes of this Section, all Eurodollar Loans with the same
Interest Periods shall be considered as one Eurodollar Loan, but Eurodollar
Loans with different Interest Periods, even if they begin on the same date,
shall be considered as separate Eurodollar Loans.
SECTION 3.
GENERAL PROVISIONS APPLICABLE TO LOANS
--------------------------------------
AND LETTERS OF CREDIT
---------------------
3.1 Interest.
--------
(a) Interest Rate. All Revolving Loans that are Base Rate Loans
-------------
shall accrue interest at the Adjusted Base Rate, and all Revolving Loans
that are Eurodollar Loans shall accrue interest at the Adjusted Eurodollar
Rate. All Swing Line Loans shall accrue interest at the Adjusted Base
Rate. All Competitive Bid Loans shall accrue interest at the Competitive
Bid Rate applicable thereto.
(b) Default Rate of Interest. Upon the occurrence, and during the
------------------------
continuance, of an Event of Default, the principal of and, to the extent
permitted by law, interest on the Loans and any other amounts owing (but
not timely paid) hereunder or under the other Credit Documents (including
without limitation fees and expenses) shall bear interest, payable on
demand, at a per annum rate equal to 2% plus the rate which would otherwise
be applicable (or if no rate is applicable, then the rate for Revolving
Loans that are Base Rate Loans plus two percent (2%) per annum).
(c) Interest Payments. Interest on Loans shall be due and payable in
-----------------
arrears on each Interest Payment Date. If an Interest Payment Date falls
on a date which 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
Eurodollar Loans where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding day.
3.2 Place and Manner of Payments.
----------------------------
All payments of principal, interest, fees, expenses and other amounts to be
made by the Borrower under this Credit Agreement shall be received not later
than 2:00 p.m. on the date when due, in Dollars and in immediately available
funds, by the Administrative Agent at its offices at
00
XxxxxxxXxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx. Payments received after
such time shall be deemed to have been received on the next Business Day. The
Borrower shall, at the time it makes any payment under this Credit Agreement,
specify to the Administrative Agent, the Loans, Letters of Credit, fees or other
amounts payable by the Borrower hereunder to which such payment is to be applied
(and in the event that it fails to specify, or if such application would be
inconsistent with the terms hereof, the Administrative Agent shall, subject to
Section 3.7, distribute such payment to the Lenders in such manner as the
Administrative Agent may deem appropriate). The Administrative Agent will
distribute such payments to the applicable Lenders if any such payment is
received prior to 2:00 p.m.; otherwise the Administrative Agent will distribute
such payment to the applicable Lenders on the next succeeding Business Day.
Whenever any payment hereunder shall be stated to be due on a day which 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 Eurodollar Loans, 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.
3.3. Prepayments.
-----------
(a) Voluntary Prepayments. The Borrower shall have the right to
---------------------
prepay Loans in whole or in part from time to time without premium or
penalty; provided, however, that (i) Eurodollar Loans may only be prepaid
on three Business Days' prior written notice to the Administrative Agent
and any prepayment of Eurodollar Loans will be subject to Section 3.15;
(ii) each such partial prepayment of Loans shall be (A) in the case of
Revolving Loans, in the minimum principal amount of $5,000,000 and integral
multiples of $1,000,000 in excess thereof, (B) in the case of Competitive
Bid Loans, in the minimum principal amount of $5,000,000 and integral
multiples of $1,000,000 in excess thereof and (C) in the case of Swing Line
Loans, in the minimum principal amount of $100,000 and integral multiples
of $50,000 in excess thereof. Amounts prepaid hereunder shall be applied
as the Borrower may elect; provided, that if the Borrower fails to specify
a voluntary prepayment then such prepayment shall be applied first to
Revolving Loans that are Base Rate Loans, then to Eurodollar Loans in
direct order of Interest Period maturities, then to Swing Line Loans and
then to Competitive Bid Loans pro rata among all Lenders holding same.
(b) Mandatory Prepayments. If at any time (i) the sum of the
---------------------
aggregate amount of Revolving Loans outstanding plus the aggregate amount
of Swing Line Loans outstanding plus the aggregate amount of Competitive
Bid Loans outstanding plus the aggregate amount of LOC Obligations
outstanding exceeds the Revolving Committed Amount, (ii) the aggregate
amount of outstanding Competitive Bid Loans exceeds the Competitive Bid
Loan Maximum Amount, (iii) the aggregate amount of Swing Line Loans
outstanding exceeds the Swing Line Committed Amount or (iv) the aggregate
amount of LOC Obligations outstanding exceeds the LOC Committed Amount, the
Borrower shall immediately make a principal payment to the Administrative
Agent in the manner and in an amount necessary to be in compliance with
Section 2.1, 2.2, 2.3 and 2.4, as applicable.
33
(c) Application of Prepayments. All amounts required to be paid
--------------------------
pursuant to Section 3.3(b) shall be applied first to Revolving Loans,
-----
second to Swing Line Loans, third, to a cash collateral account in respect
------ -----
of LOC Obligations and fourth to Competitive Bid Loans pro rata among the
------
Lenders holding same. Within the parameters of the application set forth
above, prepayments shall be applied first to Base Rate Loans and then to
Eurodollar Loans in direct order of Interest Period maturities. All
prepayments hereunder shall be subject to Section 3.15.
3.4. Fees.
----
(a) Commitment Fees. In consideration of the Revolving Committed
---------------
Amount being made available by the Lenders hereunder, the Borrower agrees
to pay to the Administrative Agent, for the pro rata benefit of each
applicable Lender (based on each Lender's Revolving Loan Commitment
Percentage of the Revolving Committed Amount), a fee equal to the product
of (a) the Applicable Percentage for Commitment Fees multiplied by (b) the
Unused Commitment (the "Commitment Fees"). The accrued Commitment Fees
---------------
shall commence to accrue on the Effective Date and shall be due and payable
in arrears on the last Business Day of each fiscal quarter of the Borrower
(as well as on the Revolving Loan Maturity Date and on any date that the
Revolving Committed Amount is reduced) for the immediately preceding fiscal
quarter (or portion thereof), beginning with the first of such dates to
occur after the Closing Date.
(b) Letter of Credit Fees.
---------------------
(i) Letter of Credit Fee. In consideration of the issuance of
--------------------
Letters of Credit hereunder, the Borrower agrees to pay to the Issuing
Lender for the pro rata benefit of the applicable Lenders (based on
each Lender's Revolving Loan Commitment Percentage of the Revolving
Committed Amount), a fee (the "Letter of Credit Fee") equal to the
--------------------
Applicable Percentage for the Letter of Credit Fee on the average
daily maximum amount available to be drawn under each such Letter of
Credit from the date of issuance to the date of expiration. The
Letter of Credit Fee will be payable quarterly in arrears 15 days
after the end of each fiscal quarter of the Borrower and on the
Revolving Loan Maturity Date.
(ii) Issuing Lender Fees. In addition to the Letter of Credit
Fees payable pursuant to subsection (i) above, the Borrower shall pay
to the Issuing Lender for its own account, without sharing by the
other Lenders, (A) a fee equal to one-fourth of one percent (.25%) per
annum on the total sum of all Letters of Credit issued by the Issuing
Lender, such fee to be paid quarterly in arrears 15 days after the end
of each fiscal quarter of the Borrower (as well as on the Revolving
Loan Maturity Date) and (B) the customary charges from time to time to
the Issuing Lender for its services in connection with the issuance,
amendment, payment, transfer, administration, cancellation and
conversion of, and drawings under, such Letters of Credit
(collectively, the "Issuing Lender Fees").
-------------------
34
(c) Administrative Fees. The Borrower agrees to pay to the
-------------------
Administrative Agent, for its own account, an annual fee as agreed to
between the Borrower and the Administrative Agent in the Administrative
Agent Fee Letter.
(d) Competitive Bid Request Fees. The Borrower agrees to pay to the
----------------------------
Administrative Agent a Competitive Bid administration fee (the "Competitive
-----------
Bid Request Fee") as agreed to between the Borrower and the Administrative
---------------
Agent as set forth in the Administrative Agent Fee Letter.
3.5. Payment in full at Maturity.
---------------------------
On the Revolving Loan Maturity Date, the entire outstanding principal
balance of all Revolving Loans, all Swing Line Loans, all Competitive Bid Loans
and all LOC Obligations, together with accrued but unpaid interest and all other
sums owing with respect thereto, shall be due and payable in full, unless
accelerated sooner pursuant to Section 8.
3.6. Computations of Interest and Fees.
---------------------------------
(a) Except for Base Rate Loans, in which case interest shall be
computed on the basis of a 365 or 366 day year as the case may be (unless
the Base Rate is determined by reference to the Federal Funds Rate), all
computations of interest and fees hereunder shall be made on the basis of
the actual number of days elapsed over a year of 360 days. Interest shall
accrue from and include the date of borrowing (or continuation or
conversion) but exclude the date of payment.
(b) It is the intent of the Lenders and the Borrower to conform to
and contract in strict compliance with applicable usury law from time to
time in effect. All agreements between the Lenders and the Borrower are
hereby limited by the provisions of this paragraph which shall override and
control all such agreements, whether now existing or hereafter arising and
whether written or oral. In no way, nor in any event or contingency
(including but not limited to prepayment or acceleration of the maturity of
any obligation), shall the interest taken, reserved, contracted for,
charged, or received under this Credit Agreement, under the Notes or
otherwise, exceed the maximum nonusurious amount permissible under
applicable law. If, from any possible construction of any of the Credit
Documents or any other document, interest would otherwise be payable in
excess of the maximum nonusurious amount, any such construction shall be
subject to the provisions of this paragraph and such documents shall be
automatically reduced to the maximum nonusurious amount permitted under
applicable law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which
would, apart from this provision, be in excess of the maximum lawful
amount, an amount equal to the amount which would have been excessive
interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Loans and not to the payment of interest, or
refunded to the Borrower or the other payor thereof if and to the extent
such amount which would have been excessive exceeds such unpaid principal
amount of the Loans. The right to demand payment of the Loans or any other
indebtedness evidenced by
35
any of the Credit Documents does not include the right to receive any
interest which has not otherwise accrued on the date of such demand, and
the Lenders do not intend to charge or receive any unearned interest in the
event of such demand. All interest paid or agreed to be paid to the Lenders
with respect to the Loans shall, to the extent permitted by applicable law,
be amortized, prorated, allocated, and spread throughout the full stated
term (including any renewal or extension) of the Loans so that the amount
of interest on account of such indebtedness does not exceed the maximum
nonusurious amount permitted by applicable law.
3.7. Pro Rata Treatment.
------------------
Except to the extent otherwise provided herein:
(a) Loans. Each Revolving Loan borrowing (including, without
-----
limitation, each Mandatory Borrowing), each payment or prepayment of
principal of any Revolving Loan, each payment of fees (other than the
Issuing Lender Fees retained by the Issuing Lender for its own account and
the administrative fees and the Competitive Bid Request Fees retained by
the Administrative Agent for its own account), each reduction of the
Revolving Committed Amount, and each conversion or continuation of any
Revolving Loan, shall be allocated pro rata among the relevant Lenders in
accordance with the respective Revolving Loan Commitment Percentages of
such Lenders (or, if the Commitments of such Lenders have expired or been
terminated, in accordance with the respective principal amounts of the
outstanding Revolving Loans and Participation Interests of such Lenders);
provided that, if any Lender shall have failed to pay its applicable pro
--------
rata share of any Revolving Loan, then any amount to which such Lender
would otherwise be entitled pursuant to this subsection (a) shall instead
be payable to the Administrative Agent; provided further, that in the event
-------- -------
any amount paid to any Lender pursuant to this subsection (a) is rescinded
or must otherwise be returned by the Administrative Agent, each Lender
shall, upon the request of the Administrative Agent, repay to the
Administrative Agent the amount so paid to such Lender, with interest for
the period commencing on the date such payment is returned by the
Administrative Agent until the date the Administrative Agent receives such
repayment at a rate per annum equal to, during the period to but excluding
the date two Business Days after such request, the Federal Funds Rate, and
thereafter, the Base Rate plus two percent (2%) per annum.
----
With respect to Competitive Bid Loans, if the Borrower fails to
specify the particular Competitive Bid Loan or Bid Loans as to which any
payment or other amount should be applied and it is not otherwise clear as
to the particular Competitive Bid Loan or Bid Loans to which such payment
or other amounts relate, or any such payment or other amount is to be
applied to Competitive Bid Loans without regard to any such direction by
the Borrower, then each payment or prepayment of principal on Competitive
Bid Loans and each payment of interest or other amount on or in respect of
Competitive Bid Loans, shall be allocated pro rata among the relevant
Competitive Bid Loan Lenders in accordance with the then outstanding
amounts of their respective Competitive Bid Loans; and
36
(b) Letters of Credit. Each payment of unreimbursed drawings in
-----------------
respect of LOC Obligations shall be allocated to each LOC Participant pro
rata in accordance with its Revolving Loan Commitment Percentage; provided
--------
that, if any LOC Participant shall have failed to pay its applicable pro
rata share of any drawing under any Letter of Credit, then any amount to
which such LOC Participant would otherwise be entitled pursuant to this
subsection (b) shall instead be payable to the Issuing Lender; provided
--------
further, that in the event any amount paid to any LOC Participant pursuant
-------
to this subsection (b) is rescinded or must otherwise be returned by the
Issuing Lender, each LOC Participant shall, upon the request of the Issuing
Lender, repay to the Administrative Agent for the account of the Issuing
Lender the amount so paid to such LOC Participant, with interest for the
period commencing on the date such payment is returned by the Issuing
Lender until the date the Issuing Lender receives such repayment at a rate
per annum equal to, during the period to but excluding the date two
Business Days after such request, the Federal Funds Rate, and thereafter,
the Base Rate plus two percent (2%) per annum.
----
3.8. Allocation of Payments After Event of Default.
---------------------------------------------
Notwithstanding any other provisions of this Credit Agreement, after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by an Agent or any Lender on account of amounts
outstanding under any of the Credit Documents shall be paid over or delivered as
follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of the
Agents in connection with enforcing the rights of the Lenders under the
Credit Documents;
SECOND, to payment of any fees owed to an Agent or a Issuing Lender;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses, (including, without limitation, reasonable attorneys' fees) of
each of the Lenders in connection with enforcing its rights under the
Credit Documents;
FOURTH, to the payment of all accrued fees and interest payable to the
Lenders hereunder;
FIFTH, to the payment of the outstanding principal amount of the
Loans, to the payment or cash collateralization of the outstanding LOC
Obligations and to any principal amounts outstanding under Hedging
Agreements, pro rata, as set forth below;
SIXTH, to all other obligations which shall have become due and
payable under the Credit Documents and not repaid pursuant to clauses
"FIRST: through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
37
In carrying out the foregoing, (a) amounts shall be applied in the
numerical order provided until prior to application to the next succeeding
category; (b) each of the Lenders shall receive an amount equal to its pro
rata share (based on the proportion that the then outstanding Loans, LOC
Obligations and obligations under Hedging Agreements held by such Lender
bears to the aggregate then outstanding Loans, LOC Obligations and
obligations under Hedging Agreements) of amounts available to be applied
pursuant to clauses "THIRD", "FOURTH," "FIFTH," and "SIXTH" above; and (c)
to the extent that any amounts available for distribution pursuant to
clause "FIFTH" above are attributable to the issued but undrawn amount of
outstanding Letters of Credit, such amounts shall be held by the
Administrative Agent in a cash collateral account and applied (x) first, to
reimburse the Issuing Lender from time to time for any drawings under such
Letters of Credit and (y) then, following the expiration of all Letters of
Credit, to all other obligations of the types described in clauses "FIFTH"
and "SIXTH" above in the manner provided in this Section 3.8.
3.9. Sharing of Payments.
-------------------
The Lenders agree among themselves that, except to the extent otherwise
provided herein, in the event that any Lender shall obtain payment in respect of
any Loan, unreimbursed drawing with respect to any LOC Obligations 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 the Bankruptcy 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 pay in cash or purchase
from the other Lenders a participation in such Loans, LOC Obligations, 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 which shall have shared the benefit of
such payment shall, by payment in cash or a 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, LOC Obligation or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit Agreement,
if any Lender or an Agent shall fail to remit to an Agent or any other Lender an
amount payable by such Lender or such Agent to such 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 due until the date such amount is paid to such 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 3.9 applies, such Lender
shall, to the extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the
38
rights of the Lenders under this Section 3.9 to share in the benefits of any
recovery on such secured claim.
3.10. Capital Adequacy.
----------------
If, after the date hereof, any Lender has determined 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, or its parent corporation, 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 (or parent corporation's) capital or assets as a
consequence of its commitments or obligations hereunder to a level below that
which such Lender, or its parent corporation, could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration such
Lender's (or parent corporation'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 on an after-tax basis (after taking into account
applicable deductions and credits in respect of the amount indemnified) 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. This covenant shall survive the termination of this Credit Agreement
and the payment of the Loans and all other amounts payable hereunder. No Lender
or parent corporation shall be entitled to receive any compensation for such
amounts incurred more than 180 days prior to delivery of such notice.
3.11. Inability To Determine Interest Rate.
------------------------------------
If prior to the first day of any Interest Period, the Administrative Agent
shall have determined in good faith (which determination shall be conclusive and
binding upon the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for ascertaining the
Eurodollar 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, and will also give prompt written notice to the Borrower
when such conditions no longer exist. If such notice is given (a) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as Base Rate Loans, (b) any Loans that were to have been converted
on the first day of such Interest Period to or continued as Eurodollar Loans
shall be converted to or continued as Base Rate Loans and (c) any outstanding
Eurodollar Loans shall be converted, on the first day of such Interest Period,
to Base Rate Loans. Until such notice has been withdrawn by the Administrative
Agent, no further Eurodollar Loans shall be made or continued as such, nor shall
the Borrower have the right to convert Base Rate Loans to Eurodollar Loans.
3.12. Illegality.
----------
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 Closing
39
Date shall make it unlawful for any Lender to make or maintain Eurodollar Loans
as contemplated by this Credit Agreement, (a) such Lender shall promptly give
written notice of such circumstances to the Borrower and the Administrative
Agent (which notice shall be withdrawn whenever such circumstances no longer
exist), (b) the commitment of such Lender hereunder to make Eurodollar Loans,
continue Eurodollar Loans as such and convert a Base Rate Loan to Eurodollar
Loans shall forthwith be canceled and, until such time as it shall no longer be
unlawful for such Lender to make or maintain Eurodollar Loans, such Lender shall
then have a commitment only to make a Base Rate Loan when a Eurodollar Loan is
requested and (c) such Lender's Loans then outstanding as Eurodollar Loans, if
any, shall be converted automatically to Base Rate Loans on the respective last
days or the then current Interest Periods with respect to such Loans or within
such earlier period as required by law. If any such conversion of a Eurodollar
Loan occurs on a day which is not the last day of the then current Interest
Period with respect thereto, the Borrower shall pay to such Lender such amounts,
if any, as may be required pursuant to Section 3.15.
3.13 Requirements of Law.
-------------------
If 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 Closing 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 any Letter of Credit, any Eurodollar Loans made by it or its
obligation to make Eurodollar Loans, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded Taxes
covered by Section 3.14 (including Non-Excluded Taxes imposed solely by
reason of any failure of such Lender to comply with its obligations under
Section 3.14(b)) and 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 which is not otherwise included in the determination
of the Eurodollar 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 which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit 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
40
obligated to promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender on an after-tax basis (after taking into
account applicable deductions and credits in respect of the amount indemnified)
for such increased cost or reduced amount receivable, provided that, in any such
--------
case, the Borrower may elect to convert the Eurodollar Loans made by such Lender
hereunder to Base Rate Loans by giving the Administrative Agent at least one
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 3.15. If any Lender becomes
entitled to claim any additional amounts pursuant to this Section 3.13, it shall
provide prompt notice thereof to the Borrower, through the Administrative Agent,
certifying (x) that one of the events described in this Section 3.13 has
occurred and describing in reasonable detail the nature of such event, (y) 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 Section 3.13 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 Loans and all
other amounts payable hereunder. No Lender shall be entitled to receive any
compensation for such amounts incurred more than 180 days prior to delivery of
such certificate.
3.14. Taxes.
-----
(a) Except as provided below in this Section 3.14, 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 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 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 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 an Agent or
-----
any Lender hereunder or under any Notes, (A) the amounts so payable to an
Agent or such Lender shall be increased to the extent necessary to yield to
an 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-
41
Excluded Taxes and shall not be required to increase any such amounts
payable to any Lender that is not organized 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 Section 3.14 whenever any Non-
Excluded Taxes are payable by the Borrower, and (B) as promptly as possible
thereafter the Borrower shall send to such 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 an Agent and any Lender for any incremental taxes, interest
or penalties that may become payable by an Agent or any Lender as a result
of any such failure. If a Lender shall change its office that makes or
maintains a Loan hereunder, the Borrower shall not be required to pay any
increased amounts to the Lender in respect of any Non-Excluded Taxes
pursuant to this subsection 3.14 to the extent that any obligation to
withhold or deduct any amount with respect to such Non-Excluded Taxes
existed on the date the Lender changed such office, unless the Lender
changed the office at the request of the Borrower. The agreements in this
subsection shall survive the termination of this Credit Agreement and the
payment of the Loans 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:
(i) (A) 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 (x) two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, or successor
applicable 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 and
(y) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be, certifying that it is entitled to
an exemption from United States backup withholding tax;
(B) deliver to the Borrower and the Administrative Agent two
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
(C) 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
(ii) in the case of any such Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (A)
represent to the Borrower (for the benefit of the Borrower and the
Agents) that it is not a bank
42
within the meaning of Section 881(c)(3)(A) of the Internal Revenue
Code, (B) 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 accurate and complete original signed copies of Internal Revenue
Service Form W-8, 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 Internal Revenue 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 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 (C) 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
Agents) 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.
Notwithstanding the above, if any change in treaty, law or regulation has
occurred after the date such Person becomes a Lender hereunder which
renders all such forms inapplicable or which 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 then such
Lender shall be exempt from such requirements. 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 (b); provided that in the case of a participant of a
--------
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.
(c) If any such taxes shall be or become applicable after the date of
this Credit Agreement to such payments by the Borrower to a Lender, such
Lender shall use reasonable efforts to make, fund or maintain the Loan or
Loans, as the case may be, through another lending office located in
another jurisdiction so as to reduce, to the fullest extent possible, the
Borrower's liability hereunder, if the making, funding or maintenance of
such Loan or Loans through such other office does not, in the reasonable
judgment of the Lender, materially affect the Lender of such Loan. If the
Borrower is required to make any additional payment to a Lender pursuant to
this Section 3.14, and any such Lender receives, or is entitled to receive,
a credit against, remission for, or repayment of, any tax paid or payable
by it in respect of, or calculated with reference to, the taxes giving rise
to such payment, such Lender shall, within a reasonable time after it
receives such credit, relief, remission or repayment, reimburse the
Borrower the amount of any such credit, relief, remission or repayment.
43
3.15. Indemnity.
---------
The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur (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 Eurodollar Loans 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 Eurodollar Loan after
the Borrower has given a notice thereof in accordance with the provisions of
this Credit Agreement and (c) the making of a prepayment of Eurodollar Loans on
a day which is not the last day of an Interest Period with respect thereto.
Such indemnification may include an amount equal to (i) the present value of the
amount of interest which 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 Eurodollar
Loans provided for herein (excluding, however, the Applicable Percentage
included therein, if any) minus (ii) the amount of interest (as reasonably
determined by such Lender) which 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 Eurodollar market. The agreements in this Section shall
survive the termination of this Credit Agreement and the payment of the Loans
and all other amounts payable hereunder.
3.16. Replacement Lenders.
-------------------
At any time after the payment by the Borrower to any Lender of any amount
pursuant to Section 3.13 or 3.14 that the Borrower reasonably deems material,
the Borrower may, by writing addressed to the Administrative Agent and each
Lender that requested the payment of such amount, nominate or propose an
Eligible Assignee that is willing to become the assignee of the Commitment and
other obligations of such Lender (a "Replacement Lender") pursuant to Section
------------------
10.3, and within fifteen (15) Business Days after receipt of such proposal from
the Borrower, each such Lender shall execute and deliver to the Administrative
Agent an Assignment Agreement whereby such Lender shall assign its entire
Commitment in favor of the proposed Replacement Lender in accordance with
Section 10.3 unless, prior to the expiration of such period, the Administrative
Agent shall have notified the Borrower and such Lender that the proposed
Replacement Lender is not reasonably acceptable to the Administrative Agent;
provided, that in no event will (i) any Lender be required to enter into an
Assignment Agreement at a price less than par plus accrued interest and prorated
fees and other costs due hereunder to the effective date thereof, (ii) the
Administrative Agent or any Lender be obligated to assist the Borrower in
identifying any Eligible Assignees that are willing to become such a Replacement
Lender or (iii) any such assignment be required if the consummation thereof
conflicts with any Requirement of Law.
44
SECTION 4.
CONDITIONS PRECEDENT
--------------------
4.1. Closing Conditions.
------------------
The obligation of the Lenders to enter into this Credit Agreement and make
the initial Extension of Credit is subject to satisfaction of the following
conditions:
(a) Executed Credit Documents. Receipt by the Agents of duly
-------------------------
executed copies of: (i) this Credit Agreement; (ii) the Notes and (iii)
all other Credit Documents, each in form and substance acceptable to the
Lenders in their sole discretion.
(b) Corporate Documents. Receipt by the Agents of the following:
-------------------
(i) Charter Documents. Copies of the articles or certificate of
-----------------
incorporation or other charter documents of the Borrower certified to
be true and complete as of a recent date by the appropriate
Governmental Authority of the state or other jurisdiction of its
incorporation and certified by a secretary or assistant secretary of
the Borrower to be true and correct as of the Effective Date.
(ii) Bylaws. A copy of the bylaws of the Borrower certified by a
------
secretary or assistant secretary of the Borrower to be trueand correct
as of the Effective Date.
(iii) Resolutions. Copies of resolutions of the Board of
-----------
Directors of the Borrower approving and adopting the Credit Documents,
the transactions contemplated therein and authorizing execution and
delivery thereof, certified by a secretary or assistant secretary of
the Borrower to be true and correct and in force and effect as of the
Effective Date.
(iv) Good Standing. Copies of (A) certificates of good standing,
-------------
existence or its equivalent with respect to the Borrower certified as
of a recent date by the appropriate Governmental Authorities of the
state or other jurisdiction of incorporation and each other
jurisdiction in which the failure to so qualify and be in good
standing would have a Material Adverse Effect on the business or
operations of the Borrower in such jurisdiction and (B) to the extent
available, a certificate indicating payment of all corporate franchise
taxes certified as of a recent date by the appropriate governmental
taxing authorities.
(v) Incumbency. An incumbency certificate of the Borrower
----------
certified by a secretary or assistant secretary to be true and correct
as of the Effective Date.
(c) Financial Statements. Receipt by the Agents and the Lenders of
--------------------
(i) the consolidated and consolidating financial statements of the Borrower
and its Subsidiaries including balance sheets and income and cash flow
statements for the fiscal quarter ended March 31, 1997 (or, if available
for the fiscal quarter ended June 30, 1997) and (ii)
45
satisfactory projections (the "Projections") for each twelve month period
-----------
for theimmediately succeeding five fiscal years.
(d) Opinion of Counsel. Receipt by the Agents of an opinion, or
------------------
opinions (which shall cover, among other things, authority, legality,
validity, binding effect and enforceability), satisfactory to the Agents,
addressed to the Agents on behalf of the Lenders and dated as of the
Effective Date, from legal counsel to the Borrower.
(e) Consent. Receipt by the Agents of evidence that all
-------
governmental, shareholder and material third party consents and approvals
necessary or desirable in connection with the execution and delivery of the
Credit Documents and the consummation of the transactions set forth
therein.
(f) Material Adverse Effect. There shall not have occurred a change
-----------------------
since May 9, 1997 that has had or could reasonably be expected to have a
Material Adverse Effect.
(g) Litigation. There shall not exist any (i) order, decree,
----------
judgment, ruling or injunction or (ii) any pending or threatened action,
suit, investigation or proceeding against the Borrower or any of its
Subsidiaries that would have or would reasonably be expected to have a
Material Adverse Effect.
(h) Change in Market. The absence of any material adverse change
----------------
in the market for syndicated bank credit facilities similar in nature to
the transactions described herein or a material disruption of, or a
material adverse change in, financial, banking or capital market
conditions.
(i) Officer's Certificates. The Agents shall have received a
----------------------
certificate or certificates executed by the chief financial officer of the
Borrower on behalf of the Borrower as of the Effective Date stating that
(A) the Borrower and each of the Borrower's Subsidiaries are in compliance
with all existing material financial obligations, (B) all governmental,
shareholder and third party consents and approvals, if any, with respect to
the Credit Documents and the transactions contemplated thereby have been
obtained, (C) no action, suit, investigation or proceeding is pending or
threatened in any court or before any arbitrator or governmental
instrumentality that purports to effect the Borrower, any of the Borrower's
Subsidiaries or any transaction contemplated by the Credit Documents, if
such action, suit, investigation or proceeding could have or could be
reasonably expected to have a Material Adverse Effect, (D) the Projections
(as defined in Section 4.1(c)) were prepared in good faith and using
reasonable assumptions and (E) immediately after giving effect to this
Credit Agreement, the other Credit Documents and all the transactions
contemplated therein to occur on such date, (1) the Borrower is Solvent,
(2) no Default or Event of Default exists, (3) all representations and
warranties contained herein and in the other Credit Documents are true and
correct in all material respects, and (4) the Borrower is in compliance
with each of the financial covenants set forth in Section 6.11.
46
(j) Payment of Prior Credit Facility. Receipt by the
--------------------------------
Administrative Agent of evidence that all obligations outstanding under the
Prior Credit Agreement have been paid in full or are now evidenced by the
Credit Documents.
(k) Fees and Expenses. Payment by the Borrower of all fees and
-----------------
expenses owed by the Borrower to the Lenders and the Agents, including,
without limitation, payment to the Agents of the fees set forth in the Fee
Letters.
(l) Other. Receipt by the Lenders of such other documents,
-----
instruments, agreements or information as reasonably and timely requested
by any Lender, including, but not limited to, information regarding
litigation, tax, accounting, labor, insurance, pension liabilities (actual
or contingent), real estate leases, material contracts, debt agreements,
property ownership and contingent liabilities of the Borrower and its
Subsidiaries.
4.2. Conditions to All Extensions of Credit.
--------------------------------------
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make new Loans nor shall the Issuing Lender be
required to issue or extend a Letter of Credit unless:
(a) Notice. The Borrower shall have delivered (i) in the case of
------
any new Revolving Loan, a Notice of Borrowing, duly executed and completed,
by the time specified in Section 2.1, (ii) in the case of any Letter of
Credit, the Issuing Lender shall have received an appropriate request for
issuance in accordance with the provisions of Section 2.2, (iii) in the
case of any Competitive Bid Loans, a Competitive Bid Loan Request, duly
executed and completed, by the time specified in Section 2.3 and (iv) in
the case of any Swing Line Loan, a Swing Line Loan Request, duly executed
and completed, by the time specified in Section 2.4.
(b) Representations and Warranties. The representations and
------------------------------
warranties made by the Borrower in any Credit Document are true and correct
in all material respects at and as if made as of such date except to the
extent they expressly relate to an earlier date;
(c) No Default. No Default or Event of Default shall exist or be
----------
continuing either prior to or after giving effect thereto;
(d) No Material Adverse Effect. There shall not have occurred any
--------------------------
Material Adverse Effect; and
(e) Availability. Immediately after giving effect to the making
------------
of a Loan (and the application of the proceeds thereof) or to the issuance
of a Letter of Credit, as the case may be, the sum of the Revolving Loans
outstanding plus LOC Obligations outstanding plus Swing Line Loans
----
outstanding plus Competitive Bid Loans outstanding shall not exceed the
Revolving Commitment Amount.
47
The delivery of each Notice of Borrowing, Competitive Bid Loan Request, Swing
Line Loan Request and each request for a Letter of Credit shall constitute a
representation and warranty by the Borrower of the correctness of the matters
specified in subsections (b), (c), (d) and (e) above. This Section 4.2 shall
not apply to continuations or conversions of Loans made pursuant to Section 2.5.
SECTION 5.
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower hereby represents to the Agents and each Lender that:
5.1. Financial Condition.
-------------------
The financial statements delivered to the Lenders pursuant to Section
4.1(c)(i) and Section 6.1(a) and (b), (a) have been prepared in accordance with
GAAP (except as may otherwise be permitted under Section 6.1(a) and (b)) and (b)
present fairly (on the basis disclosed in the footnotes to such financial
statements) the consolidated and consolidating (as applicable) financial
condition, results of operations and cash flows of the Borrower and its
Subsidiaries as of such date and for such periods. Since June 30, 1997, there
has been no sale, transfer or other disposition by the Borrower or any of its
Subsidiaries of any material part of the business or property of the Borrower
and its Subsidiaries, taken as a whole, and no purchase or other acquisition by
any of them of any business or property (including any capital stock of any
other Person) material in relation to the consolidated financial condition of
the Borrower which is not (x) reflected in the most recent financial statements
delivered to the Lenders pursuant to Section 6.1 or in the notes thereto or (y)
otherwise permitted by the terms of this Credit Agreement and communicated to
the Administrative Agent.
5.2. No Material Change.
------------------
Since May 9, 1997, there has been no development or event relating to or
affecting the Borrower or any of its Subsidiaries which has had or would be
reasonably expected to have a Material Adverse Effect and (b) from and after the
Closing Date, except as otherwise permitted under this Credit Agreement, no
dividends or other distributions have been declared, paid or made upon the
capital stock or other equity interest in the Borrower or any of its
Subsidiaries nor has any of the capital stock or other equity interest in the
Borrower been redeemed, retired, purchased or otherwise acquired for value.
5.3 Organization and Good Standing.
------------------------------
The Borrower and each of its Subsidiaries (a) is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
(or other jurisdiction) of its incorporation, (b) is duly qualified and in good
standing as a foreign corporation and authorized to do business in every
jurisdiction unless the failure to be so qualified, in good standing or
authorized would have a Material Adverse Effect and (c) has the requisite
corporate power and authority to own its properties and to carry on its business
as now conducted and as proposed to be conducted.
48
5.4. Due Authorization.
-----------------
The Borrower (a) has the requisite corporate power and authority to
execute, deliver and perform this Credit Agreement and the other Credit
Documents and to incur the obligations herein and therein provided for and (b)
is duly authorized to, and has been authorized by all necessary corporate
action, to execute, deliver and perform this Credit Agreement and the other
Credit Documents.
5.5. No Conflicts.
------------
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by the Borrower will (a)
violate or conflict with any provision of its articles or certificate of
incorporation or bylaws, (b) violate, contravene or materially conflict with any
Requirement of Law or any other law, regulation (including, without limitation,
Regulation U or Regulation X), order, writ, judgment, injunction, decree or
permit applicable to it, (c) violate, contravene or conflict with contractual
provisions of, or cause an event of default under, any indenture, loan
agreement, mortgage, deed of trust, contract or other agreement or instrument to
which it is a party or by which it may be bound, the violation of which would
have or might be reasonably expected to have a Material Adverse Effect, or (d)
result in or require the creation of any Lien upon or with respect to its
properties.
5.6. Consents.
--------
Except for consents, approvals and authorizations (a) which have been
obtained or (b) which are listed on Schedule 5.6, no consent, approval,
------------
authorization or order of, or filing, registration or qualification with, any
court or Governmental Authority or third party in respect of the Borrower is
required in connection with the execution, delivery or performance of this
Credit Agreement or any of the other Credit Documents by the Borrower.
5.7. Enforceable Obligations.
-----------------------
This Credit Agreement and the other Credit Documents have been duly
executed and delivered and constitute legal, valid and binding obligations of
the Borrower enforceable against the Borrower in accordance with their
respective terms, except as may be limited by bankruptcy or insolvency laws or
similar laws affecting creditors' rights generally or by general equitable
principles.
5.8. No Default.
----------
Neither the Borrower nor any of its Subsidiaries is in default in any
respect under any contract, lease, loan agreement, indenture, mortgage, security
agreement or other agreement or obligation to which it is a party or by which
any of its properties is bound which default would have or would be reasonably
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred or exists except as previously disclosed in writing to the Lenders.
49
5.9. Ownership.
---------
The Borrower and its Subsidiaries is the owner of, and has good and
marketable title to, all of its respective assets and none of such assets is
subject to any Lien other than Permitted Liens.
5.10. Indebtedness.
------------
The Borrower and its Subsidiaries have no Indebtedness except (a) as
disclosed in the financial statements referenced in Section 5.1, (b) as set
forth on Schedule 5.10 and (c) as otherwise permitted by this Credit Agreement.
-------------
5.11. Litigation.
----------
Except as disclosed in Schedule 5.11, there are no actions, suits or legal,
-------------
equitable, arbitration or administrative proceedings, pending or, to the
knowledge of the Borrower, threatened against the Borrower or any of its
Subsidiaries which will have or might be reasonably expected to have a Material
Adverse Effect.
5.12. Taxes.
-----
Each of the Borrower and its Subsidiaries has filed, or caused to be filed,
all tax returns (federal, state, local and foreign) required to be filed and
paid (a) all amounts of taxes shown thereon to be due (including interest and
penalties) and (b) all other taxes, fees, assessments and other governmental
charges (including mortgage recording taxes, documentary stamp taxes and
intangibles taxes) owing by it, except for such taxes (i) which are not yet
delinquent or (ii) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP. The Borrower is not aware as of the Closing Date of any
proposed tax assessments against it or any of its Subsidiaries.
5.13. Compliance with Law.
-------------------
Each of the Borrower and its Subsidiaries is in compliance with all
Requirements of Law and all other laws, rules, regulations, orders and decrees
(including without limitation Environmental Laws) applicable to it, or to its
properties, unless such failure to comply would not have or would not be
reasonably expected to have a Material Adverse Effect. No Requirement of Law
would be reasonably expected to cause a Material Adverse Effect.
5.14. ERISA.
-----
Except as would not result or be reasonably expected to result in a
Material Adverse Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no Termination Event has
occurred, and, to the best knowledge of the Borrower, no event or condition
has occurred or exists as a result of which any Termination Event could
reasonably be expected to occur, with respect to any Plan; (ii) no
50
"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; (iii) each 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; and (iv) no lien in favor or the PBGC or a Plan has arisen or is
reasonably likely to arise on account of any Plan.
(b) Neither the Borrower, nor any of its Subsidiaries nor any ERISA
Affiliate has incurred, or, to the best knowledge of the Borrower, are
reasonably expected to incur, any withdrawal liability under ERISA to any
Multiemployer Plan or Multiple Employer Plan. Neither the Borrower, any of
its Subsidiaries 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 Borrower, reasonably
expected to be in reorganization, insolvent, or terminated.
(c) 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 which has subjected or is reasonably
likely to subject the Borrower or any of its Subsidiaries 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 the Borrower or any of its Subsidiaries or any
ERISA Affiliate has agreed or is required to indemnify any person against
any such liability.
(d) The present value (determined using actuarial and other
assumptions which are reasonable with respect to the benefits provided and
the employees participating) of the liability of the Borrower and its
Subsidiaries and each ERISA Affiliate for post-retirement welfare benefits
to be provided to their current and former employees under Plans which are
welfare benefit plans (as defined in Section 3(1) of ERISA), net of all
assets under all such Plans allocable to such benefits, are reflected on
the Financial Statements in accordance with FASB 106.
(e) Each Plan which 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.
5.15. Subsidiaries.
------------
Set forth on Schedule 5.15 is a complete and accurate list of all
-------------
Subsidiaries of the Borrower. Schedule 5.15 may be updated from time to time by
-------------
the Borrower by giving written notice thereof to the Administrative Agent.
51
5.16. Use of Proceeds; Margin Stock.
-----------------------------
The proceeds of the Loans hereunder will be used solely for the purposes
specified in Section 6.9. None of the proceeds of the Loans will be used for
the purpose of purchasing or carrying any "margin stock" as defined in
Regulation U, Regulation X or Regulation G, or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
"margin stock" or any "margin security" or for any other purpose which might
constitute this transaction a "purpose credit" within the meaning of Regulation
U, Regulation X, Regulation G or Regulation T. The Borrower does not own any
"margin stock".
5.17. Government Regulation.
---------------------
The Borrower is not subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Investment Company Act of 1940
or the Interstate Commerce Act, each as amended. In addition, the Borrower is
not (a) an "investment company" registered or required to be registered under
the Investment Company Act of 1940, as amended, or controlled by such a company,
or (b) a "holding company," or a "Subsidiary company" of a "holding company," or
an "affiliate" of a "holding company" or of a "Subsidiary" or a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended. No director, executive officer or principal shareholder of the
Borrower or any of its Subsidiaries is a director, executive officer or
principal shareholder of any Lender. For the purposes hereof the terms
"director", "executive officer" and "principal shareholder" (when used with
reference to any Lender) have the respective meanings assigned thereto in
Regulation O issued by the Board of Governors of the Federal Reserve System.
5.18. Environmental Matters.
---------------------
(a) Except as set forth on Schedule 5.18 or except as would not
-------------
have or be reasonably expected to have a Material Adverse Effect:
(i) Each of the real property assets owned by the Borrower or
any of its Subsidiaries (the "Real Properties") and all operations
---------------
at the Real Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any Environmental
Law with respect to the Real Properties or the businesses operated
by the Borrower or any of its Subsidiaries (the "Businesses"), and
----------
there are no conditions relating to the Businesses or Real
Properties that would be reasonably expected to give rise to
liability under any applicable Environmental Laws.
(ii) Neither the Borrower nor any of its Subsidiaries has
received any written or oral notice of, or inquiry from any
Governmental Authority regarding, any violation, alleged violation,
non-compliance, liability or potential liability regarding Hazardous
Materials or compliance with Environmental Laws with regard to any
of the Real Properties or the Businesses, nor does the Borrower or
any of its Subsidiaries have knowledge or reason to believe that any
such notice is being threatened.
52
(iii) Hazardous Materials have not been transported or disposed
of from the Real Properties, or generated, treated, stored or
disposed of at, on or under any of the Real Properties or any other
location, in each case by, or on behalf or with the permission of
the Borrower or any of its Subsidiaries in a manner that would
reasonably be expected to give rise to liability under any
applicable Environmental Law.
(iv) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower or any of its
Subsidiaries, threatened, under any Environmental Law to which the
Borrower or any of its Subsidiaries is or will be named as a party,
nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to the Borrower or any of its Subsidiaries, the Real
Properties or the Businesses, in any amount reportable under the
federal Comprehensive Environmental Response, Compensation and
Liability Act or any analogous state law, except releases in
compliance with any Environmental Laws.
(v) There has been no release or threat of release of Hazardous
Materials at or from the Real Properties, or arising from or related
to the operations (including, without limitation, disposal) of the
Borrower or any of its Subsidiaries in connection with the Real
Properties or otherwise in connection with the Businesses.
(b) The Borrower has adopted procedures that are designed to (i)
ensure that the Borrower and its Subsidiaries, any of their operations and
each of the properties owned or leased by the Borrower and/or its
Subsidiaries remains in compliance with applicable Environmental Laws and
(ii) minimize any liabilities or potential liabilities that the Borrower
and its Subsidiaries, any of their operations and each of the properties
owned or leased by the Borrower and/or its Subsidiaries may have under
applicable Environmental Laws.
5.19. Intellectual Property.
---------------------
The Borrower and each of its Subsidiaries owns, or has the legal right to
use, all trademarks, tradenames, copyrights, technology, know-how and processes
(the "Intellectual Property") necessary for each of them to conduct its business
---------------------
as currently conducted except for those the failure to own or have such legal
right to use would not have or be reasonably expected to have a Material Adverse
Effect.
5.20. Solvency.
--------
The Borrower is and, after consummation of the transactions contemplated by
this Credit Agreement, will be Solvent.
53
5.21. Investments.
-----------
All Investments of the Borrower and its Subsidiaries are either Permitted
Investments or otherwise permitted by the terms of this Credit Agreement.
5.22. No Financing of Corporate Takeovers.
-----------------------------------
No proceeds of the Loans hereunder have been or will be used to acquire,
directly or indirectly, any security in any transaction which is subject to
Sections 13 or 14 of the Securities Exchange Act of 1934, as amended (including,
without limitation, Sections 13(d) and 14(d) thereof) or to refinance any
Indebtedness used to acquire any such securities.
5.23. Disclosure.
----------
Neither this Credit Agreement nor any financial statements delivered to the
Lenders nor any other document, certificate or statement furnished to the
Lenders by or on behalf of the Borrower in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein or herein not misleading.
5.24. Licenses, etc.
--------------
The Borrower has obtained and holds in full force and effect, all
franchises, licenses, permits, certificates, authorizations, qualifications,
accreditations, easements, rights of way and other rights, consents and
approvals which are necessary for the operation of its business as presently
conducted except where the failure to do so would not have or would not be
reasonably expected to have a Material Adverse Effect.
5.25. No Burdensome Restrictions.
--------------------------
The Borrower is not a party to any agreement or instrument or subject to
any other obligation or any charter or corporate restriction or any provision of
any applicable law, rule or regulation which, individually or in the aggregate,
would have or be reasonably expected to have a Material Adverse Effect.
5.26. Brokers' Fees.
-------------
The Borrower does not have any obligation to any Person in respect of any
finder's, broker's, investment banking or other similar fee in connection with
any of the transactions contemplated under the Credit Documents.
5.27. Labor Matters.
-------------
Except as disclosed on Schedule 5.27, there are no collective bargaining
-------------
agreements or Multiemployer Plans covering the employees of the Borrower as of
the Effective Date and none of such Persons has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five years.
54
SECTION 6.
AFFIRMATIVE COVENANTS
---------------------
The Borrower hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans and LOC Obligations, together with
interest and fees hereunder, have been paid in full and the Commitments and
Letters of Credit hereunder shall have terminated:
6.1. Information Covenants.
---------------------
The Borrower will furnish, or cause to be furnished, to the Administrative
Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in any
---------------------------
event within 90 days after the close of each fiscal year of the Borrower, a
consolidated and consolidating balance sheet and income statement of the
Borrower and its Subsidiaries, as of the end of such fiscal year, together
with related consolidated and consolidating statements of operations and
retained earnings and of cash flows for such fiscal year, setting forth in
comparative form consolidated figures for the preceding fiscal year, all
such financial information described above to be in reasonable form and
detail and audited (with respect to consolidated financial statements only)
by independent certified public accountants of recognized national standing
reasonably acceptable to the Agents and whose opinion shall be to the
effect that such financial statements have been prepared in accordance with
GAAP (except for changes with which such accountants concur) and shall not
be limited as to the scope of the audit or qualified in any manner.
(b) Quarterly Financial Statements. As soon as available, and in
------------------------------
any event within 45 days after the close of each fiscal quarter of the
Borrower (other than the fourth fiscal quarter) a consolidated and
consolidating balance sheet and income statement of the Borrower and its
Subsidiaries, as of the end of such fiscal quarter, together with related
consolidated and consolidating statements of operations and retained
earnings and of cash flows for such fiscal quarter in each case setting
forth in comparative form consolidated and consolidating figures for the
corresponding period of the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and
reasonably acceptable to the Agents, and accompanied by a certificate of
the chief financial officer of the Borrower to the effect that such
quarterly financial statements fairly present in all material respects the
financial condition of the Borrower and its Subsidiaries and have been
prepared in accordance with GAAP, subject to changes resulting from audit
and normal year-end audit adjustments.
(c) Officer's Certificate. At the time of delivery of the financial
---------------------
statements provided for in Sections 6.1(a) and 6.1(b) above, a certificate
of the chief financial officer of the Borrower substantially in the form of
Exhibit 6.1(c), (i) demonstrating compliance with the financial covenants
--------------
contained in Section 6.11 by calculation thereof as of the end of each such
fiscal period, (ii) stating whether any dividends were paid or redemptions
made during the most recent fiscal quarter and if any dividends were paid
or redemptions made showing compliance with the terms of Section 7.7, as
applicable (including
55
calculations as necessary), (iii) stating whether any principal payments,
redemptions or deposits were made with respect to Subordinated Debt during
the most recent fiscal quarter and if any principal payments, redemptions
or deposits were made with respect to Subordinated Debt showing compliance
with the terms of Section 7.11, as applicable (including calculations as
necessary) and (iv) stating that no Default or Event of Default exists, or
if any Default or Event of Default does exist, specifying the nature and
extent thereof and what action the Borrower proposes to take with respect
thereto.
(d) Annual Business Plan and Budgets. Promptly upon completion
--------------------------------
thereof, any annual business plan and budget of the Borrower and its
Subsidiaries on a consolidated basis.
(e) Accountant's Certificate. Within the period for delivery of
------------------------
the annual financial statements provided in Section 6.1(a), a certificate
of the accountants conducting the annual audit stating that they have
reviewed this Credit Agreement and stating further whether, in the course
of their audit, they have become aware of any Default or Event of Default
and, if any such Default or Event of Default exists, specifying the nature
and extent thereof; provided that no such certificate shall be required if
the Borrower has used its best efforts to obtain same and such accountants
are unwilling to provide such a certificate and other independent certified
public accountants of recognized national standing are unwilling to provide
such a certificate.
(f) Auditor's Reports. Promptly upon receipt thereof, a copy of any
-----------------
"management letter" submitted by independent accountants to the
Borrower or any of its Subsidiaries in connection with any
annual, interim or special audit of the books of the Borrower
or any of its Subsidiaries.
(g) Reports. Promptly upon transmission or receipt thereof, (a)
-------
copies of any filings and registrations with, and reports to or from, the
Securities and Exchange Commission, or any successor agency, and copies of
all financial statements, proxy statements, notices and reports as the
Borrower or any of its Subsidiaries shall send to its shareholders
generally or to a holder of the Subordinated Debt in its capacity as such a
holder and (b) upon the written request of an Agent, all reports and
written information to and from the United States Environmental Protection
Agency, or any state or local agency responsible for environmental
matters, the United States Occupational Health and Safety Administration,
or any state or local agency responsible for health and safety matters, or
any successor agencies or authorities concerning environmental, health or
safety matters.
(h) Notices. Upon the Borrower obtaining knowledge thereof, the
-------
Borrower will give written notice to the Administrative Agent immediately
of (a) the occurrence of an event or condition consisting of a Default or
Event of Default, specifying the nature and existence thereof and what
action the Borrower proposes to take with respect thereto, and (b) the
occurrence of any of the following with respect to the Borrower or any of
its Subsidiaries (i) the pendency or commencement of any litigation,
arbitral or governmental proceeding against the Borrower or any of its
Subsidiaries which if adversely determined would have or would be
reasonably expected to have a Material Adverse Effect, or (ii) the
56
institution of any proceedings against the Borrower or any of its
Subsidiaries with respect to, or the receipt of notice by such Person of
potential liability or responsibility for violation, or alleged violation
of any federal, state or local law, rule or regulation, including but not
limited to, Environmental Laws, the violation of which would have or would
be reasonably expected to have a Material Adverse Effect.
(i) ERISA. Upon the Borrower or any ERISA Affiliate obtaining
-----
knowledge thereof, Borrower will give written notice to the Administrative
Agent and each of the Lenders promptly (and in any event within five
Business Days) of: (i) any event or condition, including, but not limited
to, any Reportable Event, that constitutes, or might reasonably lead to, a
Termination Event; (ii) with respect to any Multiemployer Plan, the receipt
of notice as prescribed in ERISA or otherwise of any withdrawal liability
assessed against the Borrower or any of its ERISA Affiliates, 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 which the Borrower or any of its Subsidiaries or ERISA
Affiliates is required to contribute to each Plan pursuant to its terms and
as required to meet the minimum funding standard set forth in ERISA and the
Code with respect thereto; or (iv) any change in the funding status of any
Plan that could have a Material Adverse Effect; together, with a
description of any such event or condition or a copy of any such notice and
a statement by the principal financial officer of the Borrower briefly
setting forth the details regarding such event, condition, or notice, and
the action, if any, which has been or is being taken or is proposed to be
taken by the Borrower with respect thereto. Promptly upon request, the
Borrower shall furnish the Administrative Agent and each of the Lenders
with such additional information concerning any Plan as may be reasonably
requested, including, but not limited to, copies of each 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
each "plan year" (within the meaning of Section 3(39) of ERISA).
(j) Other Information. With reasonable promptness upon any such
-----------------
request, such other information regarding the business, properties or
financial condition of the Borrower and its Subsidiaries as an Agent may
reasonably request.
6.2. Preservation of Existence and Franchises.
----------------------------------------
The Borrower will do all things necessary to preserve and keep in full
force and effect its existence, rights, franchises and authority except (with
respect to rights, franchises and authority only) where the failure to do so
would not have or be reasonably expected to have a Material Adverse Effect.
57
6.3. Books and Records.
-----------------
The Borrower will, and will cause each of its Subsidiaries to, keep
complete and accurate books and records of its transactions in accordance with
good accounting practices on the basis of GAAP (including the establishment and
maintenance of appropriate reserves).
6.4. Compliance with Law.
-------------------
The Borrower will, and will cause each of its Subsidiaries to, comply with
all laws, rules, regulations and orders, and all applicable restrictions imposed
by all Governmental Authorities, applicable to it and its property (including,
without limitation, Environmental Laws) if noncompliance with any such law,
rule, regulation, order or restriction would have or reasonably be expected to
have a Material Adverse Effect.
6.5. Payment of Taxes and Other Indebtedness.
---------------------------------------
The Borrower will, and will cause its Subsidiaries to, pay, settle or
discharge (a) all taxes, assessments and governmental charges or levies imposed
upon it, or upon its income or profits, or upon any of its properties, before
they shall become delinquent, (b) all lawful claims (including claims for labor,
materials and supplies) which, if unpaid, might give rise to a Lien upon any of
its properties, and (c) except as prohibited hereunder, all of its other
Indebtedness as it shall become due; provided, however, that the Borrower or its
Subsidiaries shall not be required to pay any such tax, assessment, charge,
levy, claim or Indebtedness which (x) is being contested in good faith by
appropriate proceedings and as to which adequate reserves therefor have been
established in accordance with GAAP, unless the failure to make any such payment
(i) would give rise to an immediate right to foreclose on a Lien securing such
amounts or (ii) would have a Material Adverse Effect or (y) if the aggregate
amount of such unpaid tax, assessment, charge, levy, claim or Indebtedness does
not exceed $10,000,000 (taking into account applicable insurance or indemnities
to the extent the provider of such insurance or indemnity has the financial
ability to support its obligations with respect thereto and is not disputing
same).
6.6. Insurance.
---------
The Borrower will, and will cause each of its Subsidiaries to, at all times
maintain in full force and effect insurance (including worker's compensation
insurance, liability insurance, casualty insurance and business interruption
insurance) in such amounts, covering such risks and liabilities and with such
deductibles or self-insurance retentions as are in accordance with normal
industry practice.
6.7. Maintenance of Property.
-----------------------
The Borrower will, and will cause its Subsidiaries to, maintain and
preserve its properties and equipment in good repair, working order and
condition, normal wear and tear excepted, and will make, or cause to be made, in
such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as may
be needed or proper, to the extent and in the manner customary for companies in
similar businesses.
58
6.8. Performance of Obligations.
--------------------------
The Borrower will, and will cause its Subsidiaries to, perform in all
respects all of its obligations under the terms of all agreements, indentures,
mortgages, security agreements or other debt instruments to which it is a party
or by which it is bound unless the failure to do so will not have or be
reasonably expected to have a material adverse effect on the ability of the
Borrower to perform its obligations under this Credit Agreement or the other
Credit Documents.
6.9. Use of Proceeds.
---------------
The Borrower will use the proceeds of the Loans solely (a) to refinance all
amounts outstanding under the Prior Credit Agreement, (b) to provide working
capital and for general corporate purposes, (c) to finance Permitted
Acquisitions and (d) to redeem or defease amounts owing under the existing
Subordinated Debt so long as after giving pro forma effect to any such
redemption (i) the Leverage Ratio as at the end of the fiscal quarter
immediately preceding the date of such redemption is less than 3.0 to 1.0 and
(ii) there shall be at least $15,000,000 of availability existing under the
Revolving Committed Amount. The Borrower will use the Letters of Credit solely
for the purposes set forth in Section 2.2(a).
6.10. Audits/Inspections.
------------------
Upon reasonable notice and during normal business hours (but absent the
existence of an Event of Default or other reasonable cause, not more than twice
during any fiscal year), the Borrower will, and will cause its Subsidiaries to,
permit, subject to the provisions of Section 10.17, representatives appointed by
an Agent, including, without limitation, independent accountants, agents,
attorneys and appraisers to visit and inspect the Borrower's (or its
Subsidiary's) property, including its books and records, its accounts receivable
and inventory, its facilities and its other business assets, and to make
photocopies or photographs thereof and to write down and record any information
such representative obtains and shall permit an Agent or its representatives to
investigate and verify the accuracy of information provided to the Lenders and
to discuss all such matters with the officers, employees and representatives of
the Borrower and its Subsidiaries.
6.11. Financial Covenants.
-------------------
(a) Leverage Ratio. The Leverage Ratio, as of the end of each
--------------
fiscal quarter, shall be less than or equal to:
(i) From the Effective Date to and including June 30, 1999, 4.0
to 1.0; and
(ii) From July 1, 1999 and thereafter, 3.5 to 1.0.
(b) Ownership of Assets. At all times, the combined sum of total
-------------------
assets (other than the capital stock of the Subsidiaries of the Borrower)
owned by the Borrower shall be greater than or equal to fifty percent (50%)
of the total assets owned by the Borrower and its Subsidiaries on a
consolidated basis, in each case calculated in accordance with GAAP.
59
SECTION 7.
NEGATIVE COVENANTS
------------------
The Borrower hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans and LOC Obligations, together with
interest and fees hereunder, have been paid in full and the Commitments and
Letters of Credit hereunder shall have terminated:
7.1. Indebtedness.
------------
The Borrower will not, nor will it permit any of its Subsidiaries to,
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the other
Credit Documents;
(b) the Subordinated Debt;
(c) (i) Indebtedness existing as of the Closing Date (other than the
Subordinated Debt) as referenced in Section 5.10, (ii) Indebtedness
incurred under Section 7.1(j) and (iii) Indebtedness incurred under Section
7.1(k) (in each case including renewals, refinancings or extensions of such
Indebtedness in a principal amount not in excess of that outstanding as of
the date of such renewal, refinancing or extension); provided that with
--------
respect to the Indebtedness referenced in (iii) (A) such Indebtedness
remains unsecured and (B) the terms and conditions of such Indebtedness
remain not more favorable to the creditors providing such Indebtedness than
the terms and conditions of this Credit Agreement and the other Credit
Documents (including without limitation the maturity date of such
Indebtedness which must occur on a date later than the Revolving Loan
Maturity Date);
(d) Indebtedness in respect of current accounts payable and accrued
expenses incurred in the ordinary course of business including, to the
extent not current, accounts payable and accrued expenses that are subject
to bona fide dispute;
(e) Indebtedness owing from (i) a Subsidiary of the Borrower to the
Borrower or another Subsidiary of the Borrower and (ii) the Borrower to any
Subsidiary of the Borrower;
(f) purchase money Indebtedness (including Capital Leases) or TROLS
incurred by the Borrower or any of its Subsidiaries to finance the purchase
of fixed assets; provided that (i) the total of all such Indebtedness for
--------
all such Persons taken together shall not exceed an aggregate principal
amount of $5,000,000 at any one time outstanding (including any such
Indebtedness referred to in subsection (c) above); (ii) such Indebtedness
when incurred shall not exceed the purchase price of the asset(s) financed;
and (iii) no such Indebtedness shall be refinanced for a principal amount
in excess of the principal balance outstanding thereon at the time of such
refinancing;
60
(g) obligations of the Borrower or its Subsidiaries evidenced by
interest rate protection agreements, foreign exchange contracts, currency
swap agreements or other similar agreements or arrangements designed to
protect the Borrower or any of its Subsidiaries against fluctuations in
currency values which the Borrower or any of its Subsidiaries may in their
respective prudent judgment enter into so long as such interest rate
protection agreements, foreign exchange contracts, currency swap agreements
or other agreements or arrangements were not entered into for investment or
speculative reasons;
(h) Indebtedness in respect of performance, surety or appeal bonds
in the ordinary course of business;
(i) Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations (or
from guarantees or letters of credit, surety bonds or performance bonds
securing any obligations of the Borrower or any of its Subsidiaries
pursuant to such agreements), in any case incurred in connection with the
disposition of any business, assets or Subsidiary of the Borrower, to the
extent otherwise permitted under this Credit Agreement, (other than
guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or Subsidiary for the purpose of financing
such acquisition), in a principal amount not to exceed the gross proceeds
actually received by the Borrower or any of its Subsidiaries in connection
with such disposition;
(j) Indebtedness of the Borrower and its Subsidiaries; provided that
(i) such Indebtedness is unsecured and (ii) after giving effect to the
incurrence of such Indebtedness the Borrower remains in compliance with the
financial covenants contained in Section 6.11 hereof; and
(k) Indebtedness (which may or may not be subordinated to the
repayment of the Loans) incurred by the Borrower for the purpose of
redeeming or defeasing all or part of the Subordinated Debt; provided that
(i) such Indebtedness is unsecured, (ii) after giving pro forma effect to
the incurrence of such Indebtedness the Leverage Ratio, as of the end of
the fiscal quarter immediately preceding the date of such incurrence, is
less than 3.0 to 1.0 and (iii) the terms and conditions of such additional
Indebtedness are not more favorable to the creditors providing such
Indebtedness than the terms and conditions of this Credit Agreement and the
other Credit Documents (including without limitation the maturity date of
such Indebtedness which must occur on a date later than the Revolving Loan
Maturity Date).
7.2. Liens.
-----
The Borrower will not, nor will it permit its Subsidiaries to, contract,
create, incur, assume or permit to exist any Lien with respect to any of its
property or assets of any kind (whether real or personal, tangible or
intangible), whether now owned or after acquired, except for Permitted Liens.
61
7.3. Nature of Business.
------------------
The Borrower will not, nor will it permit its Subsidiaries to, alter the
character of its business from that, or substantially similar to that, conducted
as of the Closing Date or engage in any business other than the business
conducted as of the Closing Date with reasonable extensions and expansions of
such business.
7.4. Consolidation and Merger.
------------------------
The Borrower will not enter into any transaction of merger or consolidation
or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); provided that notwithstanding the foregoing provisions of this
Section 7.4, any Subsidiary of the Borrower may be merged or consolidated with
or into the Borrower if (a) the Borrower shall be the continuing or surviving
corporation, (b) the Administrative Agent is given prior written notice of such
action and (c) after giving effect thereto no Default or Event of Default
exists.
7.5. Sale or Lease of Assets.
-----------------------
The Borrower will not, nor will it permit any of its Subsidiaries to,
convey, sell, lease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any part of its business or assets whether now
owned or hereafter acquired, including, without limitation, inventory,
receivables, leasehold interests, equipment and securities other than (a) any
inventory or other assets sold, leased, licensed or disposed of (including
through commercial accommodations and going out of business sales) in the
ordinary course of business, (b) any assets replaced within 60 days after the
disposition thereof with assets to be used in the business of the Borrower and
its Subsidiaries having a value in the aggregate at least equal to the value of
the assets disposed of, (c) obsolete, idle or worn-out assets no longer used or
useful in its business, (d) the sale, lease or transfer or other disposal by the
Borrower of any of its assets to a Subsidiary, as long as after giving effect to
such transfer the Borrower is still in compliance with Section 6.11(b), (e) the
sale or other dispositions of Cash Equivalents for fair market value, (f) the
issuance of capital stock, (g) the transfer of assets which constitute a
Permitted Investment, (h) other sales of assets not to exceed $5,000,000, in the
aggregate, during any fiscal year or (i) other sales of assets, in addition to
those permitted by subsection (h) above, if (i) the transfer is for fair market
value, (ii) at the time of transfer no Default or Event of Default exists, (iii)
as a result of such transfer, no Material Adverse Effect would occur or be
reasonably likely to occur, (iv) the proceeds from such transfer are, within 12
months from the date of such transfer, reinvested in a business of a type
similar to that which the Borrower and its Subsidiaries are already engaged and
(v) such transfers do not exceed, in the aggregate, $25,000,000, during any
fiscal year.
7.6. Advances, Investments and Loans.
-------------------------------
The Borrower will not, nor will it permit any of its Subsidiaries to, make
any Investments except for Permitted Investments.
62
7.7. Restricted Payments.
-------------------
The Borrower will not, nor will it permit any of its Subsidiaries to,
directly or indirectly, (a) declare or pay any dividends (except for
distributions by the Borrower of its capital stock which does not by its terms
mature or become redeemable at the option of the holder thereof) or make any
other distribution upon any shares of its capital stock of any class or (b)
purchase, redeem or otherwise acquire or retire or make any provisions for
redemption, acquisition or retirement of any shares of its capital stock of any
class or any warrants or options to purchase any such shares other than a
Permitted Investment; provided that (i) any Subsidiary of the Borrower may pay
dividends to its parent or the Borrower, (ii) the Borrower may (A) repurchase
outstanding shares of capital stock of the Borrower following the death,
disability or termination of employment of a member of Management or (B) fund
amounts payable to participants or former participants in employee benefit plans
upon any termination of employment by such participants as provided in the
documents related thereto, in an aggregate amount (for both clauses (A) and (B)
above) not to exceed $5,000,000 in any fiscal year (provided that any unused
amount may be carried over to the next succeeding fiscal year) and (iii) an
amount up to $50,000,000 plus 50% of Net Income (excluding any extraordinary
----
items) earned subsequent to March 31, 1997 plus 50% of any Equity Issuance
----
occurring subsequent to the Closing Date may be used to pay dividends or redeem
stock so long as no Default or Event of Default exists and is continuing, or is
caused as a result thereof.
7.8. Transactions with Affiliates.
----------------------------
Except for (a) loans or advances to employees and officers of the Borrower
or any of its Subsidiaries in the ordinary course of business to provide for the
payment of reasonable expenses incurred by each such Persons in the performance
of their responsibilities to the Borrower or such Subsidiary or in connection
with any relocation (to the extent otherwise permitted by this Credit
Agreement), (b) fees, compensation or employee benefit arrangements paid to and
indemnity provided on behalf of directors, officers or employees of the Borrower
or any of its Subsidiaries in the ordinary course of business, (c) any
employment agreement (including customary benefits thereunder) that is entered
into in the ordinary course of business, (d) any dividend or other payment that
is permitted by Section 7.7 and (e) any transactions between or among the
Borrower and any of its Subsidiaries (to the extent otherwise permitted by this
Credit Agreement), the Borrower will not, nor will it permit its Subsidiaries
to, enter into any transaction or series of transactions, whether or not in the
ordinary course of business, with any officer, director, shareholder, Subsidiary
or Affiliate other than on terms and conditions substantially as favorable as
would be obtainable in a comparable arm's-length transaction with a Person other
than an officer, director, shareholder, Subsidiary or Affiliate.
7.9. Fiscal Year; Organizational Documents.
-------------------------------------
The Borrower will not, nor will it permit any of its Subsidiaries to, (a)
change its fiscal year without prior written notice to the Administrative Agent
(provided that no such change may occur if such change materially affects the
Lenders ability to read and interpret the financial statements delivered
pursuant to Section 6.1 or calculate the financial covenants in Section 6.11
63
or (b) change its articles or certificate of incorporation or its bylaws if such
change would have or be reasonably expected to have a Material Adverse Effect.
7.10. Subordinated Debt.
-----------------
The Borrower will not (a) make or offer to make any principal payments with
respect to the Subordinated Debt, (b) redeem or offer to redeem any of the
Subordinated Debt (other than as permitted pursuant to the terms of Section 6.9
and Section 7.1(k)), or (c) deposit any funds intended to discharge or defease
any or all of the Subordinated Debt. The Subordinated Debt may not be amended
or modified in any manner that would affect the Lenders without the prior
written consent of the Required Lenders.
7.11. Limitations.
-----------
The Borrower will not, nor will it permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause, incur, assume, suffer or
permit to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any such Person to (a) pay dividends or make any
other distribution on any of such Person's capital stock, (b) pay any
Indebtedness owed to the Borrower, (c) make loans or advances to the Borrower or
(d) transfer any of its property to the Borrower, except for encumbrances or
restrictions existing under or by reason of (i) customary non-assignment or net
worth provisions in any lease governing a leasehold interest or customary
provisions in documents evidencing the transactions permitted by Section 7.1(f),
(ii) any agreement or other instrument of a Person existing at the time it
becomes a Subsidiary of the Borrower; provided that such encumbrance or
--------
restriction is not applicable to any other Person, or any property of any other
Person, other than such Person becoming a Subsidiary of the Borrower and was not
entered into in contemplation of such Person becoming a Subsidiary of the
Borrower, (iii) this Credit Agreement and the other Credit Documents, (iv) the
Subordinated Debt, (v) Indebtedness permitted by Section 7.1(c)(i) or, to the
extent it will not impair the obligations of the Borrower under the Credit
Documents, Indebtedness of the Subsidiaries of the Borrower permitted by Section
7.1(j), (vi) Requirements of Law and (vii) customary restrictions with respect
to a Subsidiary of the Borrower pursuant to an agreement that has been entered
into for the sale or other disposition of all or substantially all of the
capital stock or assets of such Subsidiary.
7.12. Sale Leasebacks.
---------------
The Borrower will not, nor will it permit any of its Subsidiaries to,
directly or indirectly become or remain liable as lessee or as guarantor or
other surety with respect to any lease of any property (whether real or personal
or mixed), whether now owned or hereafter acquired, (a) which the Borrower or
Subsidiary has sold or transferred or is to sell or transfer to any other Person
or (b) which the Borrower or Subsidiary intends to use for substantially the
same purpose as any other property which has been sold or is to be sold or
transferred by the Borrower or Subsidiary to any Person in connection with such
lease; provided, however, that the Borrower may enter into such transactions
with respect to personal property, in an aggregate amount of up to $30,000,000
in sales proceeds during the term of this Credit Agreement, if (i) after giving
pro forma effect to any such transaction the Borrower shall be in compliance
with all other provisions
64
of this Credit Agreement, including Section 7.1 and Section 7.2 and (ii) the
gross cash proceeds of any such transaction are at least equal to the fair
market value of such property (as determined by the Board of Directors whose
determination shall be conclusive if made in good faith).
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. The Borrower shall:
-------
(i) default in the payment when due of any principal of any of the
Loans or of any reimbursement obligation arising from drawings under
Letters of Credit; or
(ii) default, and such default shall continue for three or more
Business Days, in the payment when due of any interest on the Loans,
or on any reimbursement obligations arising from drawings under
Letters of Credit or of any fees or other amounts owing hereunder,
under any of the other Credit Documents or in connection herewith.
(b) Representations. Any representation, warranty or statement
---------------
made or deemed to be made by the Borrower herein, in any of the other 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 to have been made.
(c) Covenants. The Borrower shall:
---------
(i) default in the due performance or observance of any term,
covenant or agreement contained in Sections 6.2, 6.4, 6.6, 6.9,
6.11(a), 6.11(b), 7.3, 7.4, 7.7 or 7.10 or
(ii) default in the due performance or observance by it of any
term, covenant or agreement contained in Sections 6.1, 6.5, 6.8, 7.1,
7.2, 7.5, 7.6, 7.8, 7.9, 7.11 or 7.12 and such default shall continue
unremedied for a period of five Business Days after the earlier of an
executive officer of the Borrower becoming aware of such default or
notice thereof given by an Agent; or
(iii) 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) or (ii) 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 an
65
executive officer of the Borrower becoming aware of such default or
notice thereof given by an Agent.
(d) Other Credit Documents. (i) The Borrower shall default in the
----------------------
due performance or observance of any term, covenant or agreement in any of
the other Credit Documents and such default shall continue unremedied for a
period of at least 30 days after the earlier of an executive officer of the
Borrower becoming aware of such default or notice thereof given by an
Agent, (ii) except pursuant to the terms thereof, any Credit Document shall
fail to be in full force and effect or the Borrower shall so assert or
(iii) except pursuant to the terms thereof, any Credit Document shall fail
to give the Agents and/or the Lenders the security interests, liens,
rights, powers and privileges purported to be created thereby.
(e) Bankruptcy, etc. The occurrence of any of the following with
---------------
respect to the Borrower or any of its Subsidiaries (other than
Insignificant Subsidiaries): (i) a court or governmental agency having
jurisdiction in the premises shall enter a decree or order for relief in
respect of the Borrower or any of its Subsidiaries (other than
Insignificant Subsidiaries) in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Borrower or any of its Subsidiaries (other than
Insignificant Subsidiaries) or for any substantial part of its property or
ordering the winding up or liquidation of its affairs; or (ii) an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect is commenced against the Borrower or
any of its Subsidiaries (other than Insignificant Subsidiaries) and such
petition remains unstayed and in effect for a period of 60 consecutive
days; or (iii) the Borrower or any of its Subsidiaries (other than
Insignificant Subsidiaries) shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary
case under any such law, or 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
make any general assignment for the benefit of creditors; or (iv) the
Borrower or any of its Subsidiaries (other than Insignificant Subsidiaries)
shall admit in writing its inability to pay its debts generally as they
become due or any action shall be taken by such Person in furtherance of
any of the aforesaid purposes.
(f) Defaults under Other Agreements. With respect to any
-------------------------------
Indebtedness (other than Indebtedness outstanding under this Credit
Agreement) of the Borrower or any of its Subsidiaries in an aggregate
principal amount in excess of $5,000,000, including, without limitation,
the Subordinated Debt (i) the Borrower or one of its Subsidiaries shall (A)
default in any payment (beyond the applicable grace period with respect
thereto, if any) with respect to any such Indebtedness, or (B) default
(after giving effect to any applicable grace period) in the observance or
performance relating to such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event or
condition shall occur or condition exist, the effect of which default or
other event or condition is to cause, or permit, the holder or holders of
such Indebtedness (or
66
trustee or agent on behalf of such holders) to cause (determined without
regard to whether any notice or lapse of time is required) any such
Indebtedness to become due prior to its stated maturity; or (ii) any such
Indebtedness shall be declared due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment or by a prepayment
from the proceeds of an Equity Issuance to the holders of Subordinated
Debt, prior to the stated maturity thereof.
(g) Judgments. One or more judgments, orders, or decrees shall be
---------
entered against any one or more of the Borrower or any of its Subsidiaries
involving a liability of $5,000,000 or more, in the aggregate, (to the
extent not paid or covered by insurance provided by a carrier who has
acknowledged coverage) and such judgments, orders or decrees (i) are the
subject of any enforcement proceeding commenced by any creditor or (ii)
shall continue unsatisfied, undischarged and unstayed for a period ending
on the first to occur of (A) the last day on which such judgment, order or
decree becomes final and unappealable or (B) 60 days.
(h) ERISA. The occurrence of any of the following events or
-----
conditions if such occurrence would cause or be reasonably expected to
cause a Material Adverse Effect: (A) 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 the Borrower or any of its Subsidiaries
or any ERISA Affiliate in favor of the PBGC or a Plan; (B) a Termination
Event shall occur with respect to a Single Employer Plan, which is, in the
reasonable opinion of the Agent, likely to result in the termination of
such Plan for purposes of Title IV of ERISA; (C) a Termination Event shall
occur with respect to a Multiemployer Plan or Multiple Employer Plan, which
is, in the reasonable opinion of the Agent, likely to result in (i) the
termination of such Plan for purposes of Title IV of ERISA, or (ii) the
Borrower or any of its Subsidiaries 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; or (D) any prohibited transaction
(within the meaning of Section 406 of ERISA or Section 4975 of the Code) or
breach of fiduciary responsibility shall occur which may subject the
Borrower or any of its Subsidiaries 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 the
Borrower or any of its Subsidiaries or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability.
(i) Ownership. There shall occur a Change of Control.
---------
(j) Subordinated Debt. (i) Any Governmental Authority with
-----------------
applicable jurisdiction determines that the Lenders are not holders of
Designated Senior Indebtedness (as defined in the Indenture) or (ii) the
subordination provisions creating the Subordinated Debt shall, in whole or
in part, terminate, cease to be effective or cease to be legally valid,
binding and enforceable as to any holder of the Subordinated Debt.
67
8.2. Acceleration; Remedies.
----------------------
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived in writing by the
Required Lenders (or the Lenders as may be required hereunder), the
Administrative Agent shall, upon the request and direction of the Required
Lenders, by written notice to the Borrower, take any of the following actions
without prejudice to the rights of the Agents or any Lender to enforce its
claims against the Borrower except as otherwise specifically provided for
herein:
(a) Termination of Commitments. Declare the Commitments terminated
--------------------------
whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Loans. Declare the unpaid principal of and any
---------------------
accrued interest in respect of all Loans, any reimbursement obligations
arising from drawings under Letters of Credit and any and all other
indebtedness or obligations of any and every kind owing by the Borrower to
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 the Borrower.
(c) Cash Collateral. Direct the Borrower to pay (and the Borrower
---------------
agrees that upon receipt of such notice, or upon the occurrence of an Event
of Default under Section 8.1(e), they will immediately pay) to the
Administrative Agent additional cash, to be held by the Administrative
Agent, for the benefit of the Lenders, in a cash collateral account as
additional security for the LOC Obligations in respect of subsequent
drawings under all then outstanding Letters of Credit in an amount equal to
the maximum aggregate amount which may be drawn under all Letters of
Credits then outstanding.
(d) Enforcement of Rights. Enforce any and all rights and interests
---------------------
created and existing under the Credit Documents, including, without
limitation, all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
8.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations under Letters of Credit, all accrued
interest in respect thereof, all accrued and unpaid fees and other indebtedness
or obligations owing to the Lenders hereunder shall immediately become due and
payable without the giving of any notice or other action by the Agents or the
Lenders, which notice or other action is expressly waived by the Borrower.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.
68
SECTION 9
AGENCY PROVISIONS
-----------------
9.1. Appointment.
-----------
Each Lender hereby designates and appoints NationsBank, N.A. as
Administrative Agent and The Chase Manhattan Bank as Documentation Agent of such
Lender to act as specified herein and the other Credit Documents, and each such
Lender hereby authorizes the Agents, as the agents 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.
Notwithstanding any provision to the contrary elsewhere herein and in the other
Credit Documents, the Agents 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 Agents. The provisions of this Section (other than Section 9.9) are
solely for the benefit of the Agents and the Lenders and the Borrower shall not
have any rights as a third party beneficiary of the provisions hereof (other
than Section 9.9). In performing its functions and duties under this Credit
Agreement and the other Credit Documents, each Agent shall act solely as an
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.
9.2. Delegation of Duties.
--------------------
An 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. An 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.
----------------------
Neither the Agents nor any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (a) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection
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 (b) responsible
in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower 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 an Agent under or in connection herewith or in connection with the
other Credit Documents, or enforceability or sufficiency therefor of any of the
other Credit Documents, or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Agents 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 the Borrower in any written or oral statement
or in any financial or other statements, instruments,
69
reports, certificates or any other documents in connection herewith or therewith
furnished or made by an Agent to the Lenders or by the Borrower to the Agents 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 Loans or the
use of the Letters of Credit or of the existence or possible existence of any
Default or Event of Default or to inspect the properties, books or records of
the Borrower. The Agents are not trustees for the Lenders and owe no fiduciary
duty to the Lenders.
9.4. Reliance on Communications.
--------------------------
The Agents shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower, independent accountants and other experts
selected by the Agents with reasonable care). The Agents may deem and treat the
Lenders as the owner of its 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). The
Agents 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 which may be incurred by it by reason
of taking or continuing to take any such action. The Agents 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.
-----------------
An Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default hereunder unless such Agent has received
notice from a Lender or the Borrower 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.
9.6. Non-Reliance on Agents and Other Lenders.
----------------------------------------
Each Lender expressly acknowledges that neither the Agents nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it and that no act by the Agents or any
affiliate thereof hereinafter taken, including any review of the affairs of the
Borrower, shall be deemed to constitute any representation or warranty by the
Agents to any Lender. Each Lender represents to the Agents that it has,
70
independently and without reliance upon the Agents 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 made its own decision to make its Loans hereunder and enter into
this Credit Agreement. Each Lender also represents that it will, independently
and without reliance upon the Agents 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.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent hereunder, the Agents 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
which may come into the possession of the Agents or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
9.7. Indemnification.
---------------
The Lenders agree to indemnify each Agent in its capacity as such (to the
extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Commitments (or if the
Commitments have expired or been terminated, in accordance with the respective
principal amounts of outstanding Loans and Participation Interest 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 which may at any time (including without limitation at
any time following payment in full of all obligations of the Borrower hereunder
and under the other Credit Documents) be imposed on, incurred by or asserted
against an 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 an 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 an Agent. If any
indemnity furnished to an Agent for any purpose shall, in the opinion of such
Agent, be insufficient or become impaired, such Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished; provided that no Agent shall be
indemnified for any event caused by its gross negligence or willful misconduct.
The agreements in this Section shall survive the payment of the Loans, LOC
Obligations and all other obligations and amounts payable hereunder and under
the other Credit Documents.
9.8. Agents in Their Individual Capacity.
-----------------------------------
Each Agent and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower as though such Agent
were not an Agent
71
hereunder. With respect to the Loans made and Letters of Credit issued and all
obligations owing to it, an Agent shall have the same rights and powers under
this Credit Agreement as any Lender and may exercise the same as though they
were not an Agent, and the terms "Lender" and "Lenders" shall include each Agent
in its individual capacity.
9.9. Successor Agent.
---------------
Any Agent may, at any time, resign upon 20 days written notice to the
Lenders. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 45 days after the notice of resignation, then the retiring Agent shall
select a successor 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 an Agent hereunder by
a successor, such successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations as an
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 an Agent under
this Credit Agreement. There shall at all times be a Person servicing as
Administrative Agent hereunder and, so long as no Default or Event of Default
shall have occurred and be continuing, the appointment of any new Administrative
Agent shall require the consent of the Borrower (which consent shall not be
unreasonably withheld).
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 (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set out below, (c) the Business Day following the day on which the same
has been delivered prepaid to a reputable national overnight air courier
service, or (d) 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 or telecopy numbers set forth on Schedule
--------
10.1, or at such other address as such party may specify by written notice to
----
the other parties hereto.
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 and the commencement of remedies described in Section
8.2, 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
72
(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 Borrower against obligations and liabilities of the Borrower to the
Lenders hereunder, under the Notes, the other Credit Documents or otherwise,
irrespective of whether the Administrative Agent or the Lenders 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. The Borrower hereby agrees that to the extent permitted by
law any Person purchasing a participation in the Loans and Commitments hereunder
pursuant to Section 10.3(c) or 3.9 may exercise all rights of set-off with
respect to its participation interest as fully as if such Person were a Lender
hereunder and any such set-off shall reduce the amount owed by the Borrower to
the Lender.
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 may not assign
--------
and transfer any of its interests in violation of Section 7.4 or 7.5 or
without the prior written consent of either the Required Lenders or the
Lenders, as the terms set forth in Section 10.6 may require; and 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 below in subsections (b) and (c) of this Section 10.3.
Notwithstanding the above (including anything set forth in subsections (b)
and (c) of this Section 10.3), nothing herein shall restrict, prevent or
prohibit (i) any Lender from (A) pledging its Loans hereunder to a Federal
Reserve Bank in support of borrowings made by such Lender from such Federal
Reserve Bank, or (B) granting assignments or participations in such
Lender's Loans and/or Commitments hereunder to its parent company and/or to
any Affiliate of such Lender or to any existing Lender or Affiliate thereof
or (ii) the Borrower from engaging in a transaction permitted by Section
7.4 or 7.5.
(b) Assignments. In addition to the assignments permitted by Section
-----------
10.3(a), each Lender may, with the prior written consent of the Borrower
and the Administrative Agent (provided that no consent of the Borrower
shall be required during the existence and continuation of an Event of
Default), which consent shall not be unreasonably withheld or delayed,
assign all or a portion of its rights and obligations hereunder pursuant to
an assignment agreement substantially in the form of Exhibit 10.3 to one or
------------
more Eligible Assignees; provided that () any such assignment shall be in a
--------
minimum aggregate amount of $15,000,000 of the Commitments and in integral
multiples of $1,000,000 above such amount (or the remaining amount of
Commitments held by such Lender) and (i) each such assignment shall be of a
constant, not varying, percentage of all of the assigning Lender's rights
and obligations under the Commitment being assigned. Any assignment
hereunder shall be effective upon satisfaction of the conditions set forth
above and delivery to the Administrative Agent of a duly executed
assignment agreement together with a transfer fee of $3,500 payable to the
Administrative Agent for its own account; provided
73
that any assignment required to be made by a Lender pursuant to Section
3.16 shall not require a transfer fee. Upon the effectiveness of any such
assignment, 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 Loans and Commitment components being
assigned. Along such lines the Borrower agrees that upon notice of any such
assignment and surrender of the appropriate Note or Notes, 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 or Notes (but with notation thereon that it is given
in substitution for and replacement of the original Note or Notes or any
replacement notes thereof).
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 and the assignee warrants that it is an
Eligible Assignee; (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
Borrower or the performance or observance by the Borrower of any of its
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 Agents, 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 Agents 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 Agents 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 which by the terms of this Credit Agreement
and the other Credit Documents are required to be performed by it as a
Lender.
(c) 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
74
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 any Loans in which the participant is participating or increase
any Commitments with respect thereto or (B) postpone the date fixed for any
payment of principal (including the extension of the final maturity of any
Loan or the date of any mandatory prepayment pursuant to Section 3.3(b)),
interest or fees in which the participant is participating, (iii) sub-
participations by the participant (except to an Affiliate, parent company
or Affiliate of a parent company of the participant) shall be prohibited
and (iv) any such participations shall be in a minimum aggregate amount of
$15,000,000 of the Commitments and in integral multiples of $1,000,000 in
excess thereof. 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 Borrower 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 Section 3.15 to the same
extent that the Lender from which such participant acquired its
participation would be entitled to the benefit of such cost protection
provisions and the amount otherwise payable to such Lender shall be so
reduced.
(d) Registration. The Administrative Agent, acting for this purpose
------------
solely on behalf of the Borrower, shall maintain a register (the
"Register") for the recordation of the names and addresses of the Lenders
--------
and the principal amount of the Loans owing to each Lender from time to
time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders
shall treat each Person whose name is recorded in the Register as the owner
of a Loan or other obligation hereunder for all purposes of this Credit
Agreement and the other Credit Documents, notwithstanding notice to the
contrary. Any assignment of any Loan or other obligation hereunder shall
be effective only upon appropriate entries with respect thereto being made
in the Register. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
10.4. No Waiver; Remedies Cumulative.
------------------------------
No failure or delay on the part of an 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 Borrower and the Agents or any Lender 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 which the Agents or
any Lender would otherwise have. No notice to or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of
75
the Agents or the Lenders to any other or further action in any circumstances
without notice or demand.
10.5. Payment of Expenses; Indemnification.
------------------------------------
The Borrower agrees to: (a) pay all reasonable out-of-pocket costs and
expenses of (i) the Agents in connection with (A) the negotiation, preparation,
execution and delivery and administration of this Credit Agreement and the other
Credit Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and expenses of Xxxxx & Xxx
Xxxxx, special counsel to the Agents but not the fees and expenses of any other
Lender's counsel), and (B) 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 Borrower under this Credit Agreement and (ii) the
Agents and the Lenders in connection with (A) enforcement of the Credit
Documents and the documents and instruments referred to therein, including,
without limitation, in connection with any such enforcement, the reasonable fees
and disbursements of counsel for the Agents and each of the Lenders, and (B) any
bankruptcy or insolvency proceeding of the Borrower or any of its Subsidiaries
and (b) indemnify each Agent and each Lender, its officers, directors,
employees, representatives and agents from and hold each of them harmless
against any and all losses, liabilities, claims, damages or 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
Agent or Lender is a party thereto) related to (i) the entering into and/or
performance of any Credit Document or the use of proceeds of any Loans
(including other extensions of credit) hereunder or the consummation of any
other transactions contemplated in any Credit Document, including, without
limitation, the reasonable 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), (ii) any Environmental Claim (except to the
extent such claim arises from the gross negligence or willful misconduct of any
indemnified party) and (iii) any claims for Non-Excluded Taxes; provided that no
indemnity or reimbursement shall be required in respect of (a) any claims
relating to the rights of a Lender as a holder of the Subordinated Debt or (b)
any claims relating to the obligations of any indemnified party in any capacity
other than as an Agent or a Lender.
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 and signed by the Required Lenders and the Borrower; provided that no
--------
such amendment, change, waiver, discharge or termination shall (a), without the
consent of each Lender affected thereby,
(i) extend the final maturity of any Loan or the time of payment
of any reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit, or postpone or extend the time for
any payment or prepayment of principal of any Loan, or any portion
thereof;
76
(ii) reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any post-
default increase in interest rates) thereon or fees hereunder;
(iii) reduce or waive the principal amount of any Loan or of any
reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit;
(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 a mandatory reduction in the Commitments shall
not constitute a change in the terms of any Commitment of any Lender);
(v) release the Borrower from its obligations under the Credit
Documents;
(vi) amend, modify or waive any provision of this Section or
Section 3.4(a), 3.4(b)(i), 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13,
3.14, 3.15, 3.16, 8.1(a), 10.2, 10.3 or 10.5;
(vii) reduce any percentage specified in, or otherwise modify, the
definition of Required Lenders; or
(viii) consent to the assignment or transfer by the Borrower of
any of its rights and obligations under (or in respect of) the Credit
Documents except as permitted thereby; and
(ix) no provision of Section 9 may be amended without the consent
of the Agents.
Notwithstanding the above, the right to deliver a Payment Blockage Notice (as
defined in the Indenture) shall reside solely with the Administrative Agent, and
the Administrative Agent shall deliver such Payment Blockage Notice only upon
the direction of the Required Lenders.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans or the Letters of Credit, 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 Borrower to use cash collateral in the context of a bankruptcy or insolvency
proceeding.
10.7. Counterparts.
------------
This Credit Agreement may be executed in any number of counterparts, each
of which where 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. Delivery of an executed counterpart by facsimile
77
shall be as effective as an original executed counterpart and shall be deemed a
representation that an original executed counterpart will be delivered.
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. Defaulting Lender.
-----------------
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then notwithstanding the provisions of Section 10.6 it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter requiring the consent of all the Lenders adversely
affected thereby; provided, however, that all other benefits and obligations
under the Credit Documents shall apply to such Defaulting Lender.
10.10. Survival of Indemnification and Representations and Warranties.
--------------------------------------------------------------
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Credit Agreement,
the making of the Loans, the issuance of the Letters of Credit and the repayment
of the Loans, LOC Obligations and other obligations and the termination of the
Commitments hereunder.
10.11. Governing Law; Venue.
--------------------
(a) THIS 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 Agreement or
any other Credit Document may be brought in the courts of the State of
North Carolina or the State of New York, or of the United States for either
the Western District of North Carolina or the Southern District of New
York, and, by execution and delivery of this Credit Agreement, the Borrower
hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of such courts. The
Borrower 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 for notices pursuant to Section 10.1, such service to
become effective 30 days after such mailing. Nothing herein shall affect
the right of a Lender to serve process in any other manner permitted by law
or to commence legal proceedings or to otherwise proceed against the
Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which 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
78
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.
10.12. Waiver of Jury Trial.
--------------------
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
10.13. Time.
----
All references to time herein shall be references to Eastern Standard Time
or Eastern Daylight time, as the case may be, unless specified otherwise.
10.14. 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.
10.15. 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.
10.16. Binding Effect; Termination of Prior Credit Agreement.
-----------------------------------------------------
This Credit Agreement shall become effective at such time when all of the
conditions set forth in Section 4.1 have been satisfied or waived by the Lenders
and it shall have been executed by the Borrower and the Agents, and the Agents
shall have received copies hereof (telefaxed or otherwise) which, when taken
together, bear the signatures of each Lender, and thereafter this Credit
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Agents and each Lender and their respective successors and assigns. Upon this
Credit Agreement becoming effective, the Prior Credit Agreement shall be deemed
terminated and the lenders party to the Prior Credit Agreement shall no longer
have any obligations thereunder.
10.17. Confidentiality.
---------------
Each Lender agrees that it will use its reasonable best efforts to keep
confidential and to cause any representative designated under Section 6.11 to
keep confidential any non-public information from time to time supplied to it
under any Credit Document; provided, however, that nothing herein shall affect
-------- -------
the disclosure of any such information to (i) the extent such Lender in
79
good faith believes is required by statute, rule, regulation or judicial
process, (ii) counsel for such Lender or to its accountants, (iii) bank
examiners or auditors or comparable Persons, (iv) any affiliate of such Lender,
(v) any other Lender, or any assignee, transferee or participant, or any
potential assignee, transferee or participant, of all or any portion of any
Lender's rights under this Credit Agreement who is notified of the confidential
nature of the information and agrees to be bound by this provision or provisions
reasonably comparable hereto, or (vi) any other Person in connection with any
litigation to which any one or more of the Lenders is a party; and provided
--------
further that no Lender shall have any obligation under this Section 10.17 to the
-------
extent any such information becomes available on a non-confidential basis from a
source other than the Borrower or its Subsidiaries or that any information
becomes publicly available other than by a breach of this Section 10.17. Each
Lender agrees it will use all confidential information exclusively for the
purpose of evaluating, monitoring, selling, protecting or enforcing its Loans
and other rights under the Credit Documents. Without affecting any other rights
of the Borrower, each Lender acknowledges that the Borrower shall be entitled to
seek the remedies of injunction, specific performance and other equitable relief
for any breach of the provisions of this Section 10.17.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
80
Signature page to Credit Agreement, dated as of August 8, 1997, among
Xxxxx, Inc. as Borrower, the Lenders party thereto, NationsBank, N.A. as
Administrative Agent and The Chase Manhattan Bank as Documentation Agent.
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:
--------
XXXXX, INC.,
a Delaware corporation
By: -----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Chief Financial Officer
LENDERS:
-------
NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as Administrative Agent
By:--------------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
individually in its capacity as a Lender and in its
capacity as Documentation Agent
By:-------------------------------------------
Name: Xxxxxxxx Xxxxxxx, Xx.
Title: Vice President
Signature page to Credit Agreement, dated as of August 8, 1997, among
Xxxxx, Inc. as Borrower, the Lenders party thereto, NationsBank, N.A. as
Administrative Agent and The Chase Manhattan Bank as Documentation Agent.
THE BANK OF NEW YORK
By:------------------------------------
Name:----------------------------------
Title:---------------------------------
Signature page to Credit Agreement, dated as of August 8, 1997, among
Xxxxx, Inc. as Borrower, the Lenders party thereto, NationsBank, N.A. as
Administrative Agent and The Chase Manhattan Bank as Documentation Agent.
THE BANK OF NOVA SCOTIA
By:------------------------------------
Name:----------------------------------
Title:---------------------------------
Signature page to Credit Agreement, dated as of August 8, 1997, among
Xxxxx, Inc. as Borrower, the Lenders party thereto, NationsBank, N.A. as
Administrative Agent and The Chase Manhattan Bank as Documentation Agent.
CIBC, INC.
By:------------------------------------
Name:----------------------------------
Title:---------------------------------
Signature page to Credit Agreement, dated as of August 8, 1997, among
Xxxxx, Inc. as Borrower, the Lenders party thereto, NationsBank, N.A. as
Administrative Agent and The Chase Manhattan Bank as Documentation Agent.
FLEET NATIONAL BANK
By:------------------------------------
Name:----------------------------------
Title:---------------------------------
Signature page to Credit Agreement, dated as of August 8, 1997, among
Xxxxx, Inc. as Borrower, the Lenders party thereto, NationsBank, N.A. as
Administrative Agent and The Chase Manhattan Bank as Documentation Agent.
FIRST UNION NATIONAL BANK
By:------------------------------------
Name:----------------------------------
Title:---------------------------------
Signature page to Credit Agreement, dated as of August 8, 1997, among
Xxxxx, Inc. as Borrower, the Lenders party thereto, NationsBank, N.A. as
Administrative Agent and The Chase Manhattan Bank as Documentation Agent.
CAISSE NATIONALE DE CREDIT AGRICOLE
By:------------------------------------
Name:----------------------------------
Title:---------------------------------
Signature page to Credit Agreement, dated as of August 8, 1997, among
Xxxxx, Inc. as Borrower, the Lenders party thereto, NationsBank, N.A. as
Administrative Agent and The Chase Manhattan Bank as Documentation Agent.
CORESTATES BANK, N.A.
By:------------------------------------
Name:----------------------------------
Title:---------------------------------
Signature page to Credit Agreement, dated as of August 8, 1997, among
Xxxxx, Inc. as Borrower, the Lenders party thereto, NationsBank, N.A. as
Administrative Agent and The Chase Manhattan Bank as Documentation Agent.
SUMMIT BANK
By:------------------------------------
Name:----------------------------------
Title:---------------------------------
Exhibit 2.1
to
Credit Agreement
FORM OF
NOTICE OF BORROWING
-------------------
TO: NATIONSBANK, N.A., as Administrative Agent
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
RE: Credit Agreement dated as of August ___, 1997 among Xxxxx, Inc. (the
"Borrower"), NationsBank, N.A., as Administrative Agent, The Chase
Manhattan Bank, as Documentation Agent and the Lenders party thereto (as
the same may be amended, modified, extended or restated from time to time,
the "Credit Agreement")
DATE: _____________, 199__
--------------------------------------------------------------------------------
1. This Notice of Borrowing is made pursuant to the terms of the Credit
Agreement. All capitalized terms used herein unless otherwise defined shall
have the meanings set forth in the Credit Agreement.
2. Please be advised that the Borrower is requesting Revolving Loans in the
amount of $_______________ to be funded on ____________, 199__ at the
interest rate option set forth in paragraph 3 below. Subsequent to the
funding of the requested Revolving Loans, the aggregate amount of Revolving
Loans outstanding will be $_______________, which together with the
aggregate amount of LOC Obligations outstanding plus the aggregate amount of
Swing Line Loans outstanding plus the aggregate amount of Competitive Bid
Loans outstanding is less than or equal to the Revolving Committed Amount.
3. The interest rate option applicable to the requested Revolving
Loans shall be:
a. ________ the Adjusted Base Rate
b. ________ the Adjusted Eurodollar Rate for an Interest
Period of:
________ one month
________ two months
________ three months
________ six months
4. The representations and warranties made by the Borrower in any Credit
Document are true and correct in all material respects at and as if made on
the date hereof except to the extent they expressly relate to an earlier
date.
5. As of the date hereof, no Default or Event of Default has occurred and is
continuing or would be caused by this Notice of Borrowing.
6. No Material Adverse Effect has occurred since the Closing Date.
XXXXX, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
-2-
Exhibit 2.1(e)
to
Credit Agreement
FORM OF
REVOLVING NOTE
--------------
Lender: ___________________ ______________, 1997
Principal Sum: $____________
FOR VALUE RECEIVED, Xxxxx, Inc., a Delaware corporation (the "Borrower"),
--------
hereby promises to pay to the order of the Lender set forth above (the
"Lender"), at the office of NationsBank, N.A. (the "Administrative Agent") as
------ --------------------
set forth in that certain Credit Agreement dated as of August ___, 1997 between
the Borrower, the Lenders party thereto (including the Lender), NationsBank,
N.A., as Administrative Agent and The Chase Manhattan Bank, as Documentation
Agent (as amended, modified, extended or restated from time to time, the "Credit
------
Agreement"), the Principal Sum set forth above (or such lesser amount as shall
---------
equal the aggregate unpaid principal amount of the Revolving Loans made by the
Lender to the Borrower under the Credit Agreement), in lawful money of the
United States of America and in immediately available funds, on the dates and in
the principal amounts provided in the Credit Agreement, and to pay interest on
the unpaid principal amount of each such Revolving Loan, at such office, in like
money and funds, for the period commencing on the date of such Revolving Loan
until such Revolving Loan shall be paid in full, at the rates per annum and on
the dates provided in the Credit Agreement.
This Note is one of the Revolving Notes referred to in the Credit Agreement
and evidences Revolving Loans made by the Lender thereunder. Capitalized terms
used in this Revolving Note and not otherwise defined shall have the respective
meanings assigned to them in the Credit Agreement and the terms and conditions
of the Credit Agreement are expressly incorporated herein and made a part
hereof.
The Credit Agreement provides for the acceleration of the maturity of the
Revolving Loans evidenced by this Revolving Note upon the occurrence of certain
events (and for payment of collection costs in connection therewith) and for
prepayments of Revolving Loans upon the terms and conditions specified therein.
In the event this Revolving Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in
addition to the principal and interest, all costs of collection, including
reasonable attorney fees.
The date, amount, type, interest rate and duration of Interest Period (if
applicable) of each Revolving Loan made by the Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by the
Lender on its books; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing hereunder or under this Revolving
Note in respect of the Revolving Loans to be evidenced by this Revolving Note,
and each such recordation or endorsement shall be prima facie evidence of such
information.
This Note and the Revolving Loans evidenced hereby may be transferred in
whole or in part only by registration of such transfer on the Register
maintained for such purpose by or on behalf of the Borrower as provided in
Section 10.3(d) of the Credit Agreement.
THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
executed as of the date first above written.
XXXXX, INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
-2-
Exhibit 2.3(b)
to
Credit Agreement
FORM OF
COMPETITIVE BID LOAN REQUEST
----------------------------
TO: NATIONSBANK, N.A., as Administrative Agent
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
RE: Credit Agreement dated as of August ___, 1997 among Xxxxx, Inc. (the
"Borrower"), NationsBank, N.A., as Administrative Agent, The Chase
Manhattan Bank, as Documentation Agent and the Lenders party thereto
(as the same may be amended, modified, extended or restated from time
to time, the "Credit Agreement")
DATE: _____________, 199__
--------------------------------------------------------------------------------
1. This Competitive Bid Loan Request is made pursuant to the terms of the
Credit Agreement. All capitalized terms used herein unless otherwise defined
shall have the meanings set forth in the Credit Agreement.
2. The Borrower hereby gives you notice it requests solicitation of Competitive
Bids under the Credit Agreement, and in connection therewith sets forth
below the terms on which the related Competitive Bid Loan borrowing is
requested to be made:
(A) Date of requested Competitive
Bid Loan (which is a Business Day)
____________________
(B) Principal amount of requested
Competitive Bid Loan
____________________
(C) Interest Period and the last
day thereof
____________________
3. Subsequent to the funding of the requested Competitive Bid Loans, the
aggregate amount of Competitive Bid Loans outstanding will be
$_______________, which together with the aggregate amount of Revolving
Loans outstanding plus the aggregate amount of LOC Obligations outstanding
plus the aggregate amount of Swing Line Loans outstanding is less than or
equal to the Revolving Committed Amount.
4. The representations and warranties made by the Borrower in any Credit
Document are true and correct in all material respects at and as if made on
the date hereof except to the extent they expressly relate to an earlier
date.
5. As of the date hereof, no Default or Event of Default has occurred and is
continuing or would be caused by this Competitive Bid Loan Request.
6. No Material Adverse Effect has occurred since the Closing Date.
XXXXX, INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
-2-
Exhibit 2.3(d)
to
Credit Agreement
FORM OF
COMPETITIVE BID ACCEPT/REJECT LETTER
------------------------------------
NATIONSBANK, N.A., as Administrative Agent
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of August ___, 1997
among Xxxxx, Inc. (the "Borrower"), NationsBank, N.A., as Administrative Agent,
The Chase Manhattan Bank, as Documentation Agent and the Lenders party thereto
(as amended, modified, extended or restated from time to time, the "Credit
------
Agreement").
---------
In accordance with Section 2.3(d) of the Credit Agreement and in connection
with our Competitive Bid Request dated ____________, we hereby accept the
following bids for maturity on _____________:
Principal Amount Competitive Bid Rate Lender
---------------- -------------------- ------
$__________ ____________% ____________
$__________ ____________% ____________
We hereby reject the following bids:
Principal Amount Competitive Bid Rate Lender
---------------- -------------------- ------
$__________ ____________% ____________
$__________ ____________% ____________
XXXXX, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
-2-
Exhibit 2.3(h)
to
Credit Agreement
FORM OF
COMPETITIVE BID LOAN NOTE
-------------------------
Lender: ___________________ ______________, 1997
Principal Sum: $____________
FOR VALUE RECEIVED, Xxxxx, Inc., a Delaware corporation (the "Borrower"),
--------
hereby promises to pay to the order of the Lender set forth above (the
"Lender"), at the office of NationsBank, N.A. (the "Administrative Agent") as
------ --------------------
set forth in that certain Credit Agreement dated as of August ___, 1997 between
the Borrower, the Lenders party thereto (including the Lender), NationsBank,
N.A., as Administrative Agent and The Chase Manhattan Bank, as Documentation
Agent (as amended, modified, extended or restated from time to time, the "Credit
------
Agreement"), the Principal Sum set forth above (or such lesser amount as shall
---------
equal the aggregate unpaid principal amount of the Competitive Bid Loans made by
the Lender to the Borrower under the Credit Agreement), in lawful money of the
United States of America and in immediately available funds, on the dates and in
the principal amounts provided in the Credit Agreement, and to pay interest on
the unpaid principal amount of each such Competitive Bid Loan, at such office,
in like money and funds, for the period commencing on the date of such
Competitive Bid Loan until such Competitive Bid Loan shall be paid in full, at
the rates per annum and on the dates provided in the Credit Agreement.
This Note is one of the Competitive Bid Loan Notes referred to in the Credit
Agreement and evidences Competitive Bid Loans made by the Lender thereunder.
Capitalized terms used in this Competitive Bid Loan Note and not otherwise
defined shall have the respective meanings assigned to them in the Credit
Agreement and the terms and conditions of the Credit Agreement are expressly
incorporated herein and made a part hereof.
The Credit Agreement provides for the acceleration of the maturity of the
Competitive Bid Loans evidenced by this Competitive Bid Loan Note upon the
occurrence of certain events (and for payment of collection costs in connection
therewith) and for prepayments of Competitive Bid Loans upon the terms and
conditions specified therein. In the event this Competitive Bid Loan Note is
not paid when due at any stated or accelerated maturity, the Borrower agrees to
pay, in addition to the
principal and interest, all costs of collection, including reasonable attorney
fees.
The date, amount, type, interest rate and duration of Interest Period (if
applicable) of each Competitive Bid Loan made by the Lender to the Borrower, and
each payment made on account of the principal thereof, shall be recorded by the
Lender on its books; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing hereunder or under this Competitive
Bid Loan Note in respect of the Competitive Bid Loans to be evidenced by this
Competitive Bid Loan Note, and each such recordation or endorsement shall be
prima facie evidence of such information.
This Note and the Competitive Bid Loans evidenced hereby may be transferred
in whole or in part only by registration of such transfer on the Register
maintained for such purpose by or on behalf of the Borrower as provided in
Section 10.3(d) of the Credit Agreement.
THIS COMPETITIVE BID LOAN NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has caused this Competitive Bid Loan Note
to be executed as of the date first above written.
XXXXX, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
-2-
Exhibit 2.4(b)
to
Credit Agreement
FORM OF
SWING LINE LOAN REQUEST
-----------------------
TO: NATIONSBANK, N.A., as Lender
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
RE: Credit Agreement dated as of August ___, 1997 among Xxxxx, Inc. (the
"Borrower"), NationsBank, N.A., as Administrative Agent, The Chase
Manhattan Bank, as Documentation Agent and the Lenders named therein (as
the same may be amended, modified, extended or restated from time to time,
the "Credit Agreement")
DATE: _____________, 199__
--------------------------------------------------------------------------------
1. This Swing Line Loan Request is made pursuant to the terms of the Credit
Agreement. All capitalized terms used herein unless otherwise defined
shall have the meanings set forth in the Credit Agreement.
2. Please be advised that the Borrower is requesting a Swing Line Loan on the
terms set forth below:
(A) Principal amount of requested
Swing Line Loan ____________________
(B) Date of requested Swing Line
Loan ____________________
3. Subsequent to the funding of the requested Swing Line Loan, (a) the
aggregate amount of Swing Line Loans outstanding will be $______________
which is less than or equal to the Swing Line Committed Amount and (b) the
sum of the aggregate
amount of Swing Line Loans outstanding plus the aggregate amount of
Revolving Loans outstanding plus the aggregate amount of Competitive Bid
Loans outstanding plus the aggregate amount of LOC Obligations outstanding
will be $______________ which is less than or equal to the then Revolving
Committed Amount.
4. The representations and warranties made by the Borrower in any Credit
Document are true and correct in all material respects at and as if made on
the date hereof except to the extent they expressly relate to an earlier
date.
5. As of the date hereof, no Default or Event of Default has occurred and is
continuing or would be caused by this Swing Line Loan Request.
6. No Material Adverse Effect has occurred since the Closing Date.
XXXXX, INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
-2-
Exhibit 2.4(e)
to
Credit Agreement
FORM OF
SWING LINE LOAN NOTE
--------------------
$10,000,000 August ___, 1997
FOR VALUE RECEIVED, Xxxxx, Inc., a Delaware corporation (the "Borrower"),
--------
hereby promises to pay to the order of NationsBank, N.A. (the "Lender"), at the
-------
office of the Lender as set forth in that certain Credit Agreement dated as of
August ___, 1997 between the Borrower, the Lenders party thereto (including the
Lender), NationsBank, N.A., as Administrative Agent and The Chase Manhattan
Bank, as Documentation Agent (as amended, modified, extended or restated from
time to time, the "Credit Agreement"), $10,000,000 (or such lesser amount as
----------------
shall equal the aggregate unpaid principal amount of the Swing Line Loans made
by the Lender to the Borrower under the Credit Agreement), in lawful money of
the United States of America and in immediately available funds, on the dates
and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount of each such Swing Line Loan, at such
office, in like money and funds, for the period commencing on the date of each
Swing Line Loan until each Swing Line Loan shall be paid in full, at the rates
per annum and on the dates provided in the Credit Agreement.
This Note is the Swing Line Loan Note referred to in the Credit Agreement
and evidences Swing Line Loans made by the Lender thereunder. Capitalized terms
used in this Swing Line Loan Note and not otherwise defined shall have the
respective meanings assigned to them in the Credit Agreement and the terms and
conditions of the Credit Agreement are expressly incorporated herein and made a
part hereof.
The Credit Agreement provides for the acceleration of the maturity of the
Swing Line Loans evidenced by this Swing Line Loan Note upon the occurrence of
certain events (and for payment of collection costs in connection therewith) and
for prepayments of Swing Line Loans upon the terms and conditions specified
therein. In the event this Swing Line Loan Note is not paid when due at any
stated or accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest, all costs of collection, including reasonable attorney
fees.
The date, amount and interest rate of each Swing Line Loan made by the
Lender to the Borrower, and each payment made on account of the principal
thereof, shall be recorded by the Lender
on its books; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing hereunder or under this Swing Line
Loan Note in respect of the Swing Line Loans to be evidenced by this Swing Line
Loan Note, and each such recordation or endorsement shall be prima facie
evidence of such information.
This Note and the Swing Line Loans evidenced hereby may be transferred in
whole or in part only by registration of such transfer on the Register
maintained for such purpose by or on behalf of the Borrower as provided in
Section 10.3(d) of the Credit Agreement.
THIS SWING LINE LOAN NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has caused this Swing Line Loan Note to be
executed as of the date first above written.
XXXXX, INC.
By: ___________________________
Name: _________________________
Title: ________________________
-2-
Exhibit 2.5
to
Credit Agreement
FORM OF
NOTICE OF CONTINUATION/CONVERSION
---------------------------------
TO: NATIONSBANK, N.A., as Administrative Agent
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
RE: Credit Agreement dated as of August ___, 1997 among Xxxxx, Inc. (the
"Borrower"), NationsBank, N.A., as Administrative Agent, The Chase
Manhattan Bank, as Documentation Agent, and the Lenders party thereto (as
the same may be amended, modified, extended or restated from time to time,
the "Credit Agreement")
DATE: _____________, 199__
1. This Notice of Continuation/Conversion is made pursuant to the terms of the
Credit Agreement. All capitalized terms used herein unless otherwise
defined shall have the meanings set forth in the Credit Agreement.
2. Please be advised that the Borrower is requesting that a portion of the
current outstanding Revolving Loans in the amount of $________________
currently accruing interest at __________ be continued or converted as of
_____________ at the interest rate option set forth in paragraph 3 below.
3. The interest rate option applicable to the continuation or conversion of all
or part of the existing Revolving Loans shall be:
a. ________ the Adjusted Base Rate
b. ________ the Adjusted Eurodollar Rate for an Interest Period of:
________ one month
________ two months
________ three months
________ six months
XXXXX, INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
-2-
Exhibit 6.1(c)
to
Credit Agreement
FORM OF
OFFICER'S CERTIFICATE
---------------------
For the fiscal quarter ended _________________, 19___.
I, ______________________, chief financial officer of Xxxxx, Inc. (the
"Borrower") hereby certify on behalf of the Borrower and not in my individual
---------
capacity that, with respect to that certain Credit Agreement dated as of August
___, 1997 (as it may be amended, modified, extended or restated from time to
time, the "Credit Agreement"; all of the defined terms in the Credit Agreement
----------------
are incorporated herein by reference) among the Borrower, the Lenders party
thereto, NationsBank, N.A., as Administrative Agent and The Chase Manhattan
Bank, as Documentation Agent:
a. Attached hereto as Schedule 1 are calculations demonstrating
-
compliance by the Borrower with the financial covenants contained in
Section 6.11 of the Credit Agreement as of the end of the fiscal period
referred to above.
b. No dividends were paid or redemptions made during the fiscal period
referenced above or if any dividends were made or redemptions paid,
attached hereto as Schedule 2 is a description thereof and evidence of
----------
compliance with the terms of Section 7.7 of the Credit Agreement, as
applicable, including calculations as necessary.
c. No principal payments, redemptions or deposits were made with
respect to Subordinated Debt during the fiscal period referenced above or
if any principal payments, redemption or deposits were made with respect to
Subordinated Debt, attached hereto as Schedule 3 is a description thereof
----------
and evidence of compliance with the terms of Section 7.10 of the Credit
Agreement, as applicable, including calculations as necessary.
d. No Default or Event of Default has occurred under the Credit
Agreement/1/.
----------------
/1/ If a Default or Event of Default shall have occurred an explanation of such
Default or Event of Default shall be provided on a separate page together
with an explanation of the action taken or proposed to be taken by the
Borrower with respect thereto.
e. The Borrower - prepared quarterly financial statements which
accompany this certificate fairly present in all material respects the
financial condition of the Borrower and has been prepared in accordance
with GAAP, subject to changes resulting from normal year-end audit
adjustments.
This ______ day of ___________, 1997.
XXXXX, INC.
By: ___________________________
Chief Financial Officer
-2-
Exhibit 10.3
to
Credit Agreement
FORM OF
ASSIGNMENT AGREEMENT
--------------------
Reference is made to that certain Credit Agreement dated as of August ___,
1997 among Xxxxx, Inc. (the "Borrower"), the Lenders party thereto, NationsBank,
N.A., as Administrative Agent and The Chase Manhattan Bank, as Documentation
Agent (as the same may be amended, modified, extended or restated from time to
time, the "Credit Agreement"). All capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Credit Agreement.
1. The Assignor (as defined below) hereby sells and assigns, without
recourse, to the Assignee (as defined below), and the Assignee hereby purchases
and assumes, without recourse, from the Assignor, effective as of effective date
of the assignment as designated below (the "Effective Date"), the interests set
forth below (the "Assigned Interest") in the Assignor's rights and obligations
under the Credit Agreement, including, without limitation, (a) the interests set
forth below in the Revolving Loan Commitment Percentage of the Assignor on the
Effective Date, (b) the Loans owing to the Assignor in connection with the
Assigned Interest which are outstanding on the Effective Date, and (c) the
Assignor's participation interests in all Letters of Credit as of the Effective
Date and the rights and obligations appurtenant thereto under the LOC Documents.
The purchase of the Assigned Interest shall be at par and periodic payments made
with respect to the Assigned Interest which (i) accrued prior to the Effective
Date shall be remitted to the Assignor and (ii) accrue from and after the
Effective Date shall be remitted to the Assignee. From and after the Effective
Date, the Assignee, if it is not already a Lender under the Credit Agreement,
shall become a "Lender" for all purposes of the Credit Agreement and the other
Credit Documents and, to the extent of such assignment, the assigning Lender
shall be relieved of its obligations under the Credit Agreement.
2. The Assignor represents and warrants to the Assignee that it is the
holder of the Assigned Interest, and the Loans and Participation Interests
related thereto, and it has not previously transferred or encumbered such
Assigned Interest, Loans or Participation Interests.
3. The Assignee represents and warrants to the Assignor that it is an
Eligible Assignee.
4. This Assignment shall be effective only upon (a) the consent of the
Borrower and the Administrative Agent to the extent required under Section
10.3(b) of the Credit Agreement and (b) delivery to the Administrative Agent of
this Assignment Agreement together with the transfer fees, if applicable, set
forth in Section 10.3(b) of the Credit Agreement.
5. The Assignor and the Assignee confirm to and agree with each other and
the other parties to the Credit Agreement as to the terms set forth in paragraph
2 of Section 10.3(b) of the Credit Agreement.
6. This Assignment shall be governed by and construed in accordance with
the laws of the State of New York.
Terms of Assignment
(a) Date of Assignment _____________
(b) Legal Name of Assignor _____________
(c) Legal Name of Assignee _____________
(d) Effective Date of Assignment _____________
(e) Revolving Loan Commitment
Percentage assigned _____________%
(f) Total Revolving Loans
outstanding as of Effective Date $_____________
(g) Principal Amount of Revolving
Loans assigned on Effective
Date (the amount set forth
in (f) multiplied by the
percentage set forth in (e)) $_____________
(h) Revolving Committed Amount $_____________
(i) Principal Amount of Revolving
Committed Amount Assigned on
the Effective Date (the amount
set forth in (h) multiplied by
the percentage set forth in (e)) $_____________
The terms set forth above
are hereby agreed to:
_________________________, as Assignor
By: _____________________
Name: ___________________
Title: __________________
_________________________, as Assignee
By: _____________________
Name: ___________________
Title: __________________
CONSENTED TO (if applicable):
XXXXX, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
NATIONSBANK, N.A., as
Administrative Agent
By: _____________________________
Name: ___________________________
Title: __________________________
