$250,000,000
CREDIT AGREEMENT
among
FLORIDA ROCK INDUSTRIES, INC.,
as Borrower,
THE MATERIAL DOMESTIC SUBSIDIARIES
OF THE BORROWER
FROM TIME TO TIME PARTIES HERETO,
as Guarantors,
THE LENDERS PARTIES HERETO
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
and
BANK OF AMERICA, N.A.,
as Syndication Agent,
and
SUNTRUST BANK,
as Documentation Agent,
and
WACHOVIA CAPITAL MARKETS, LLC
and
BANC OF AMERICA SECURITIES LLC
Co-Lead Arrangers
Dated as of May 27, 2004
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
Section 1.1 Defined Terms. 1
Section 1.2 Other Definitional Provisions. 21
Section 1.3 Accounting Terms. 21
ARTICLE II THE LOANS; AMOUNT AND TERMS 22
Section 2.1 Revolving Loans. 22
Section 2.2 [Intentionally Omitted]. 24
Section 2.3 Swingline Loan Subfacility. 24
Section 2.4 Letter of Credit Subfacility. 26
Section 2.5 Fees. 29
Section 2.6 Commitment Reductions. 30
Section 2.7 Prepayments. 30
Section 2.8 Minimum Principal Amount of Tranches. 31
Section 2.9 Default Rate and Payment Dates. 31
Section 2.10 Conversion Options. 31
Section 2.11 Computation of Interest and Fees. 32
Section 2.12 Pro Rata Treatment and Payments. 32
Section 2.13 Non-Receipt of Funds by the
Administrative Agent. 34
Section 2.14 Inability to Determine Interest Rate. 35
Section 2.15 Illegality. 36
Section 2.16 Requirements of Law. 36
Section 2.17 Indemnity. 38
Section 2.18 Taxes. 38
Section 2.19 Indemnification; Nature of Issuing
Lender's Duties. 40
ARTICLE III REPRESENTATIONS AND WARRANTIES 42
Section 3.1 Financial Condition. 42
Section 3.2 No Change. 42
Section 3.3 Corporate Existence; Compliance with Law. 42
Section 3.4 Corporate Power; Authorization;
Enforceable Obligations. 42
Section 3.5 No Legal Bar; No Default. 43
Section 3.6 No Material Litigation. 43
Section 3.7 Investment Company Act. 43
Section 3.8 Margin Regulations. 43
Section 3.9 ERISA. 44
Section 3.10 Environmental Matters. 44
Section 3.11 Purpose of Loans. 45
Section 3.12 Subsidiaries. 45
Section 3.13 Ownership. 45
Section 3.14 Indebtedness. 45
Section 3.15 Taxes. 46
Section 3.16 Investments. 46
i
Section 3.17 No Burdensome Restrictions. 46
Section 3.18 Brokers' Fees. 46
Section 3.19 Labor Matters. 46
Section 3.20 Accuracy and Completeness of Information. 46
Section 3.21 Anti-Terrorism Laws. 47
Section 3.22 Solvency. 47
ARTICLE IV CONDITIONS PRECEDENT 47
Section 4.1 Conditions to Closing Date and
Initial Revolving Loans. 47
Section 4.2 Conditions to All Extensions of Credit. 49
ARTICLE V AFFIRMATIVE COVENANTS 50
Section 5.1 Financial Statements. 51
Section 5.2 Certificates; Other Information. 52
Section 5.3 Payment of Obligations. 52
Section 5.4 Conduct of Business and Maintenance
of Existence. 53
Section 5.5 Maintenance of Property; Insurance. 53
Section 5.6 Inspection of Property; Books and
Records; Discussions. 53
Section 5.7 Notices. 54
Section 5.8 Financial Covenants. 54
Section 5.9 Compliance with Law. 55
Section 5.10 Environmental Laws. 55
Section 5.11 [Intentionally Omitted]. 56
Section 5.12 Additional Guarantors. 56
ARTICLE VI NEGATIVE COVENANTS 56
Section 6.1 Indebtedness. 56
Section 6.2 Liens. 57
Section 6.3 Nature of Business. 57
Section 6.4 Consolidation, Merger, Sale or Purchase
of Assets, etc. 57
Section 6.5 Advances, Investments and Loans. 58
Section 6.6 Issuance of Equity Securities. 58
Section 6.7 Transactions with Affiliates; Modification
of Documentation. 58
Section 6.8 Ownership of Subsidiaries; Restrictions. 59
Section 6.9 Fiscal Year; Organizational Documents. 59
Section 6.10 Limitation on Restricted Actions. 59
Section 6.11 Restricted Payments. 59
Section 6.12 Prepayments of Indebtedness, etc. 60
Section 6.13 Intentionally Omitted]. 60
Section 6.14 [Intentionally Omitted]. 60
Section 6.15 No Further Negative Pledges. 60
ARTICLE VII EVENTS OF DEFAULT 60
Section 7.1 Events of Default. 60
Section 7.2 Acceleration; Remedies. 63
ARTICLE VIII THE AGENT 63
ii
Section 8.1 Appointment. 63
Section 8.2 Delegation of Duties. 64
Section 8.3 Exculpatory Provisions. 64
Section 8.4 Reliance by Administrative Agent. 64
Section 8.5 Notice of Default. 65
Section 8.6 Non-Reliance on Administrative Agent
and Other Lenders. 65
Section 8.7 Indemnification. 66
Section 8.8 Administrative Agent in Its Individual
Capacity. 66
Section 8.9 Successor Administrative Agent. 66
Section 8.10 Syndication Agent and Documentation Agent.67
ARTICLE IX MISCELLANEOUS 67
Section 9.1 Amendments and Waivers. 67
Section 9.2 Notices. 69
Section 9.3 No Waiver; Cumulative Remedies. 70
Section 9.4 Survival of Representations and
Warranties. 70
Section 9.5 Payment of Expenses and Taxes. 70
Section 9.6 Successors and Assigns; Participations;
Purchasing Lenders. 71
Section 9.7 Adjustments; Set-off. 74
Section 9.8 Table of Contents and Section Headings. 75
Section 9.9 Counterparts. 75
Section 9.10 Effectiveness. 75
Section 9.11 Severability. 75
Section 9.12 Integration. 75
Section 9.13 Governing Law. 75
Section 9.14 Consent to Jurisdiction and Service of
Process. 76
Section 9.15 Arbitration. 76
Section 9.16 Confidentiality. 77
Section 9.17 Acknowledgments. 78
Section 9.18 Waivers of Jury Trial. 78
Section 9.19 Patriot Act Notice. 79
ARTICLE X GUARANTY 79
Section 10.1 The Guaranty. 79
Section 10.2 Bankruptcy. 80
Section 10.3 Nature of Liability. 80
Section 10.4 Independent Obligation. 80
Section 10.5 Authorization. 80
Section 10.6 Reliance. 81
Section 10.7 Waiver. 81
Section 10.8 Limitation on Enforcement. 82
Section 10.9 Confirmation of Payment. 82
iii
Schedules
Schedule 1.1(a) Account Designation Letter
Sechedule 1.1(b) Existing Letters of Credit
Schedule 2.1(a) Schedule of Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Revolving Note
Schedule 2.3(d) Form of Swingline Note
Schedule 2.10 Form of Notice of Conversion/Extension
Schedule 2.18 Section 2.18 Certificate
Schedule 3.6 Litigation
Schedule 3.10 Environmental Matters
Schedule 3.12 Subsidiaries
Schedule 3.19 Labor Matters
Schedule 5.12 Form of Joinder Agreement
Schedule 6.1(b) Indebtedness
Schedule 6.2 Permitted Liens
Schedule 6.5 Investments
Schedule 9.2 Schedule of Lenders' Lending Offices
Schedule 9.6(c) Form of Commitment Transfer Supplement
iv
THIS CREDIT AGREEMENT, dated as of May 27, 2004 (the "Credit
Agreement"), among FLORIDA ROCK INDUSTRIES, INC., a Florida
corporation (the "Borrower"), those Domestic Subsidiaries of the
Borrower identified as a "Guarantor" on the signature pages
hereto and such other Material Domestic Subsidiaries of the
Borrower as may from time to time become a party hereto as
Guarantors, the several banks and other financial institutions as
may from time to time become parties to this Agreement
(collectively, the "Lenders"; and individually, a "Lender"),
WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent for
the Lenders hereunder (in such capacity, the "Administrative
Agent"), BANK OF AMERICA, N.A., as syndication agent for the
Lenders hereunder (in such capacity, the "Syndication Agent"),
SUNTRUST BANK, as documentation agent for the lenders (in such
capacity, the "Documentation Agent") and WACHOVIA CAPITAL
MARKETS, LLC and BANC OF AMERICA SECURITIES LLC, as Co-Lead
Arrangers hereunder.
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make
loans and other financial accommodations to the Borrower in the
amount of up to $250,000,000, as more particularly described
herein;
WHEREAS, the Lenders have agreed to make such loans and
other financial accommodations to the Borrower on the terms and
conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms.
As used in this Agreement, terms defined in the preamble to
this Agreement have the meanings therein indicated, and the
following terms have the following meanings:
"Account Designation Letter" shall mean the Notice of
Account Designation Letter dated the Closing Date from the
Borrower to the Administrative Agent substantially in the form
attached hereto as Schedule 1.1(a).
"Acquisition", by any Person, means the acquisition by such
Person all or substantially all of the capital stock or all or
substantially all of the Property of another Person, whether or
not involving a merger or consolidation with such Person.
"Additional Credit Party" shall mean each Person that
becomes a Guarantor by execution of a Joinder Agreement in
accordance with Section 5.12.
"Administrative Agent" shall have the meaning set forth in
the first paragraph of this Agreement and any successors in such
capacity.
"Affiliate" shall mean as to any Person, any other Person
(excluding any Subsidiary) which, directly or indirectly, is in
control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, a Person shall be
deemed to be "controlled by" a Person if such Person possesses,
directly or indirectly, power either (a) to vote 10% or more of
the securities having ordinary voting power for the election of
directors of such Person or (b) to direct or cause the direction
of the management and policies of such Person whether by contract
or otherwise.
"Agreement" shall mean this Credit Agreement, as amended,
modified or supplemented from time to time in accordance with its
terms.
"Alternate Base Rate" shall mean, for any day, a rate per
annum equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall
mean, at any time, the rate of interest per annum publicly
announced from time to time by Wachovia at its principal office
in Charlotte, North Carolina as its prime rate. Each change in
the Prime Rate shall be effective as of the opening of business
on the day such change in the Prime Rate occurs. The parties
hereto acknowledge that the rate announced publicly by Wachovia
as its Prime Rate is an index or base rate and shall not
necessarily be its lowest or best rate charged to its customers
or other banks; and "Federal Funds Effective Rate" shall mean,
for any day, the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published on the next succeeding
Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it. If
for any reason the Administrative Agent shall have determined
(which determination shall be conclusive in the absence of
manifest error) that it is unable to ascertain the Federal Funds
Effective Rate, for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate
Base Rate shall be determined without regard to clause (b) of the
first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective on
the opening of business on the date of such change.
"Alternate Base Rate Loans" shall mean Loans that bear
interest at an interest rate based on the Alternate Base Rate.
"Anti-Terrorism Laws" shall have the meaning set forth in
Section 3.21.
2
"Applicable Margin" shall mean, for any day, the rate per
annum set forth below opposite the applicable Level then in
effect, it being understood that the Applicable Margin for (a)
Alternate Base Rate Loans shall be the percentage set forth under
the column "Alternate Base Rate Margin", (b) LIBOR Rate Loans
shall be the percentage set forth under the column "LIBOR Rate
Margin", (c) the Letter of Credit Fee shall be the percentage set
forth under the column "LIBOR Rate Margin" and (d) the Commitment
Fee shall be the percentage set forth under the column
"Commitment Fee."
Consolidated
Funded Debt to
Level Consolidated Alternate
Total Base Rate LIBOR Rate Commitment
Capitalization Margin Margin Fee
I >.40 to 1.0 0.0% 0.875% 0.175%
II < .40 to 1.0 but 0.0% 0.625% 0.125%
>.30 to 1.0
III < .30 to 1.0 0.0% 0.450% 0.100%
The Applicable Margin shall, in each case, be determined and
adjusted quarterly on the date five (5) Business Days after the
date on which the Administrative Agent has received from the
Borrower the annual or quarterly financial information and
certifications required to be delivered to the Administrative
Agent and the Lenders in accordance with the provisions of
Sections 5.1(a), 5.1(b) and 5.2(b) (each an "Interest
Determination Date"). Such Applicable Margin shall be effective
from such Interest Determination Date until the next such
Interest Determination Date. The initial Applicable Margins
shall be based on Level III until the first Interest
Determination Date occurring after June 30, 2004. After the
Closing Date, if the Borrower shall fail to provide the annual or
quarterly financial information and certifications in accordance
with the provisions of Sections 5.1(a), 5.1(b) and 5.2(b), the
Applicable Margin from such Interest Determination Date shall, on
the date five (5) Business Days after the date by which the
Borrower was so required to provide such financial information
and certifications to the Administrative Agent and the Lenders,
be based on Level I until such time as such information and
certifications are provided, whereupon the Level shall be
determined by the then current Consolidated Funded Debt to
Consolidated Total Capitalization Ratio.
"Asset Disposition" shall mean the disposition of any or all
of the assets (including, without limitation, the Capital Stock
of a Subsidiary or any ownership interest in a joint venture) of
the Borrower or any Subsidiary whether by sale, lease, transfer
or otherwise. The term "Asset Disposition" shall not include (a)
Specified Sales or (b) any Equity Issuance.
"Bankruptcy Code" shall mean the Bankruptcy Code in Title 11
of the United States Code, as amended, modified, succeeded or
replaced from time to time.
"Borrower" shall have the meaning set forth in the first
paragraph of this Agreement.
"Borrowing Date" shall mean, in respect of any Loan, the
date such Loan is made.
3
"Business Day" shall mean a day other than a Saturday,
Sunday or other day on which commercial banks in Charlotte, North
Carolina or New York, New York are authorized or required by law
to close; provided, however, that when used in connection with a
rate determination, borrowing or payment in respect of a LIBOR
Rate Loan, the term "Business Day" shall also exclude any day on
which banks in London, England are not open for dealings in
Dollar deposits in the London interbank market.
"Capital Lease" shall mean any lease of property, real or
personal, the obligations with respect to which are required to
be capitalized on a balance sheet of the lessee in accordance
with GAAP.
"Capital Stock" shall mean (a) in the case of a corporation,
capital stock, (b) in the case of an association or business
entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of capital stock, (c) in
the case of a partnership, partnership interests (whether general
or limited), (d) in the case of a limited liability company,
membership interests and (e) any other interest or participation
that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing
Person.
"Cash Equivalents" shall mean (a) securities issued or
directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States of America is
pledged in support thereof) having maturities of not more than
twelve months from the date of acquisition ("Government
Obligations"), (b) U.S. dollar denominated (or foreign currency
fully hedged) time deposits, certificates of deposit, Eurodollar
time deposits and Eurodollar certificates of deposit of (y) any
domestic commercial bank of recognized standing having capital
and surplus in excess of $250,000,000 or (z) any bank whose short-
term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the
equivalent thereof (any such bank being an "Approved Bank"), in
each case with maturities of not more than 364 days from the date
of acquisition, (c) commercial paper and variable or fixed rate
notes issued by any Approved Bank (or by the parent company
thereof) or 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 a Lender) or a recognized securities dealer
having capital and surplus in excess of $500,000,000 for direct
obligations issued by or fully guaranteed by the United States of
America, (e) obligations of any state of the United States or any
political subdivision thereof for the payment of the principal
and redemption price of and interest on which there shall have
been irrevocably deposited Government Obligations maturing as to
principal and interest at times and in amounts sufficient to
provide such payment, and (f) auction preferred stock rated in
the highest short-term credit rating category by S&P or Moody's.
"Change of Control" shall mean the occurrence of any of the
following events: (a) any Person or two or more Persons (other
than the directors of Borrower in office as of the Closing Date
or Persons controlled by such directors) acting in concert shall
have acquired beneficial
4
ownership, directly or indirectly, or shall have acquired by contract
or otherwise, or shall have entered into a contract or arrangement
that, upon consummation, will result in its or their acquisition of
control over, Voting Stock of the Borrower (or other securities
convertible into such Voting Stock) representing 50% or more of the
combined voting power of all Voting Stock of the Borrower, or (b)
continuing directors shall cease for any reason to constitute a
majority of the members of the board of directors of the Borrower
then in office. As used herein, "beneficial ownership" shall have the
meaning provided in Rule 13d-3 of the Securities and Exchange
Commission promulgated under the Securities Exchange Act of 1934.
As used herein, "continuing directors" shall mean the directors
of Borrower on the Closing Date and each additional director
whose nomination for election as a director of Borrower is
approved by at least two-thirds of the then continuing directors.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" shall mean the Revolving Commitment, the LOC
Commitment and the Swingline Commitment, individually or
collectively, as appropriate.
"Commitment Fee" shall have the meaning set forth in Section
2.5(a).
"Commitment Percentage" shall mean the Revolving Commitment
Percentage and/or LOC Commitment Percentage, as appropriate.
"Commitment Period" shall mean the period from and including
the Closing Date to but not including the Revolving Commitment
Termination Date.
"Commitment Transfer Supplement" shall mean a Commitment
Transfer Supplement, substantially in the form of Schedule
9.6(c).
"Commonly Controlled Entity" shall mean an entity, whether
or not incorporated, which is under common control with the
Borrower within the meaning of Section 4001 of ERISA or is part
of a group which includes the Borrower and which is treated as a
single employer under Section 414 of the Code.
"Consolidated EBITDA" means, for any period, the sum of (i)
Consolidated Net Income for such period, plus (ii) an amount
which, in the determination of Consolidated Net Income for such
period, has been deducted for (A) Consolidated Interest Expense,
(B) total federal, state, local and foreign income, value added
and similar taxes, (C) losses (or minus gains) on the sale or
disposition of assets outside the ordinary course of business and
(D) depreciation, amortization expense and other non-cash
charges, all as determined in accordance with GAAP.
"Consolidated Funded Debt" shall mean, at any date, all
liabilities of the Borrower and its Subsidiaries (including
letters of credit) that are or should be reflected at such date
on the Borrower's consolidated balance sheet as long-term debt
and current maturities of long-term debt
5
in accordance with GAAP. For purposes of calculating the
Consolidated Funded Debt to Consolidated Total Capitalization Ratio,
all Guaranty Obligations shall be deemed to constitute Consolidated
Funded Debt.
"Consolidated Funded Debt to Consolidated Total Capitalization
Ratio" means with respect to the Borrower and its Subsidiaries on
a consolidated basis at any date of determination, the ratio of
(a) Consolidated Funded Debt as of such date to (b) Consolidated
Total Capitalization as of such date.
"Consolidated Interest Expense" means, for any period, all
cash interest expense of the Borrower and its Subsidiaries
including the interest component under Capital Leases, as
determined in accordance with GAAP.
"Consolidated Net Income" means, for any period, net income
(excluding extraordinary items) after taxes for such period of
the Borrower and its Subsidiaries on a consolidated basis, as
determined in accordance with GAAP.
"Consolidated Net Worth" means, on any day for the Borrower
and its Subsidiaries on a consolidated basis, shareholders'
equity as determined in accordance with GAAP.
"Consolidated Total Assets" means, as of any date with
respect to the Borrower and its Subsidiaries on a consolidated
basis, total assets, as determined in accordance with GAAP, plus
any amount deducted from the total assets to account for loans
against the cash surrender value of life insurance policies in
accordance with GAAP.
"Consolidated Total Capitalization" means, on any day for
the Borrower and its Subsidiaries on a consolidated basis, the
sum of Consolidated Funded Debt plus Consolidated Net Worth.
"Consolidated Total Liabilities" means, as of any date with
respect to the Borrower and its Subsidiaries on a consolidated
basis, total liabilities, as determined in accordance with GAAP.
"Consolidated Total Tangible Assets" means, as of any date
with respect to the Borrower and its Subsidiaries on a
consolidated basis, Consolidated Total Assets minus (a) goodwill
and (b) other items properly classified as "intangible assets" in
each case as determined in accordance with GAAP.
"Contractual Obligation" shall mean, as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or undertaking to which such Person is a
party or by which it or any of its property is bound.
"Credit Documents" shall mean this Agreement, each of the
Notes, the Letters of Credit, the LOC Documents and each Joinder
Agreement.
"Credit Party" shall mean any of the Borrower or the
Guarantors.
6
"Credit Party Obligations" shall mean, without duplication,
all of the obligations of the Credit Parties to the Lenders
(including the Issuing Lender) and the Administrative Agent,
whenever arising, under this Agreement, the Notes or any of the
other Credit Documents (including, but not limited to, any
interest accruing after the occurrence of a filing of a petition
of bankruptcy under the Bankruptcy Code with respect to any
Credit Party, regardless of whether such interest is an allowed
claim under the Bankruptcy Code) and (b) all liabilities and
obligations, whenever arising, owing from the Borrower or any of
its Subsidiaries under or in connection with any Hedging
Agreement between the Borrower or any of its Subsidiaries and any
Hedging Agreement Provider.
"Default" shall mean any of the events specified in Section
7.1, whether or not any requirement for the giving of notice or
the lapse of time, or both, or any other condition, has been
satisfied.
"Defaulting Lender" shall mean, at any time, any Lender
that, at such time (a) has failed to make a Loan required
pursuant to the term of this Credit Agreement, including the
funding of a Participation Interest in accordance with the terms
hereof, (b) has failed to pay to the Administrative Agent or any
Lender an amount owed by such Lender pursuant to the terms of
this Credit Agreement, or (c) has been deemed insolvent or has
become subject to a bankruptcy or insolvency proceeding or to a
receiver, trustee or similar official.
"Dollars" and "$" shall mean dollars in lawful currency of
the United States of America.
"Domestic Lending Office" shall mean, initially, the office
of each Lender designated as such Lender's Domestic Lending
Office shown on Schedule 9.2; and thereafter, such other office
of such Lender as such Lender may from time to time specify to
the Administrative Agent and the Borrower as the office of such
Lender at which Alternate Base Rate Loans of such Lender are to
be made.
"Domestic Subsidiary" shall mean any Subsidiary that is
organized and existing under the laws of the United States or any
state or commonwealth thereof or under the laws of the District
of Columbia.
"Environmental Laws" shall mean any and all applicable
foreign, Federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, requirements
of any Governmental Authority or other Requirement of Law
(including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human
health or the environment, as now or may at any time be in effect
during the term of this Credit Agreement.
"Equity Issuance" shall mean any issuance by the Borrower or
any Subsidiary to any Person which is not the Borrower of (a)
shares of its Capital Stock, (b) any shares of its Capital Stock
pursuant to the exercise of options or warrants or (c) any shares
of its Capital Stock pursuant to the conversion of any debt
securities to equity. The term "Equity Issuance" shall not
7
include any Asset Disposition or the issuance of common stock of
the Borrower's Subsidiaries to its officers, directors or
employees in connection with stock offering plans and other
benefit plans of such Subsidiaries.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"Eurodollar Reserve Percentage" shall mean for any day, the
percentage (expressed as a decimal and rounded upwards, if
necessary, to the next higher 1/100th of 1%) which is in effect
for such day as prescribed by the Federal Reserve Board (or any
successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or
emergency reserves) in respect of Eurocurrency liabilities, as
defined in Regulation D of such Board as in effect from time to
time, or any similar category of liabilities for a member bank of
the Federal Reserve System in New York City.
"Existing Letters of Credit" shall mean those letters of
credit identified on Schedule 1.1(b).
"Event of Default" shall mean any of the events specified in
Section 7.1; provided, however, that any requirement for the
giving of notice or the lapse of time, or both, or any other
condition, has been satisfied.
"Extension of Credit" shall mean, as to any Lender, the
making of a Loan by such Lender or the issuance of, or
participation in, a Letter of Credit by such Lender.
"Federal Funds Effective Rate" shall have the meaning set
forth in the definition of "Alternate Base Rate".
"Fee Letter" shall mean the letter agreement dated April 1,
2004 addressed to the Borrower from the Administrative Agent, as
amended, modified or otherwise supplemented.
"Foreign Subsidiary" shall mean any Subsidiary that is not a
Domestic Subsidiary.
"GAAP" shall mean generally accepted accounting principles
in effect in the United States of America applied on a consistent
basis, subject, however, in the case of determination of
compliance with the financial covenants set out in Section 5.8 to
the provisions of Section 1.3.
"Government Acts" shall have the meaning set forth in
Section 2.19.
"Governmental Authority" shall mean any nation or
government, any state or other political subdivision thereof and
any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
8
"Guarantor" shall mean (a) any of the Material Domestic
Subsidiaries identified as a "Guarantor" on the signature pages
hereto and (b) the Additional Credit Parties which execute a
Joinder Agreement, together with their successors and permitted
assigns.
"Guaranty" shall mean the guaranty of the Guarantors set
forth in Article X.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended
to guarantee any Indebtedness of any other Person in any manner,
whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (a) to purchase any such
Indebtedness or any property constituting security therefor, (b)
to advance or provide funds or other support for the payment or
purchase of any such Indebtedness or to maintain working capital,
solvency or other balance sheet condition of such other Person
(including without limitation keep well agreements, maintenance
agreements, comfort letters or similar agreements or
arrangements) for the benefit of any holder of Indebtedness of
such other Person, (c) to lease or purchase Property, securities
or services primarily for the purpose of assuring the holder of
such Indebtedness, or (d) to otherwise assure or hold harmless
the holder of such Indebtedness against loss in respect thereof.
"Hedging Agreement" shall mean, with respect to any Person,
any agreement entered into to protect such Person against
fluctuations in interest rates, or currency or raw materials
values, including, without limitation, any interest rate swap,
cap or collar agreement or similar arrangement between such
Person and one or more counterparties, any foreign currency
exchange agreement, currency protection agreements, commodity
purchase or option agreements or other interest or exchange rate
or commodity price hedging agreements.
"Hedging Agreement Provider" shall mean any Person (or
affiliate of such Person) that was a Lender at the time it
entered into such Hedging Agreement whether or not such Person
has ceased to be a Lender under the Credit Agreement.
"Indebtedness" shall mean, with respect to any Person,
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, or upon which
interest payments are customarily made, (c) all obligations of
such Person under conditional sale or other title retention
agreements relating to Property purchased by such Person (other
than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of
business), (d) all obligations of such Person issued or assumed
as the deferred purchase price of Property or services purchased
by such Person (other than trade debt incurred in the ordinary
course of business and due within six months of the incurrence
thereof) which would appear as liabilities on a balance sheet of
such Person, (e) all obligations of such Person under take-or-pay
or similar arrangements or under commodities agreements, (f) all
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,
(g) all Guaranty Obligations of such Person with respect to
Indebtedness of another Person, (h) the principal portion of all
9
obligations of such Person under Capital Leases, (i) all
obligations of such Person under Hedging Agreements, (j) the
maximum amount of all standby letters of credit issued or
bankers' acceptances facilities created for the account of such
Person and, without duplication, all drafts drawn thereunder (to
the extent unreimbursed), (k) all preferred Capital Stock issued
by such Person and which by the terms thereof could be (at the
request of the holders thereof or otherwise) subject to mandatory
sinking fund payments, redemption or other acceleration, (l) the
principal balance outstanding under any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-
balance sheet financing product, and (m) the Indebtedness of any
partnership or unincorporated joint venture in which such Person
is a general partner or a joint venturer, but only to the extent
to which there is recourse to such Person for payment of such
Indebtedness.
"Insolvency" shall mean, with respect to any Multiemployer
Plan, the condition that such Plan is insolvent within the
meaning of such term as used in Section 4245 of ERISA.
"Interest Coverage Ratio" means, with respect to the
Borrower and its Subsidiaries on a consolidated basis for the
twelve month period ending on the last day of any fiscal quarter
of the Borrower and its Subsidiaries, the ratio of (a)
Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for such period.
"Interest Payment Date" shall mean (a) as to any Alternate
Base Rate Loan or Swingline Loan, the last day of each March,
June, September and December and the Revolving Commitment
Termination Date, (b) as to any LIBOR Rate Loan having an
Interest Period of three months or less, the last day of such
Interest Period, and (c) as to any LIBOR Rate Loan having an
Interest Period longer than three months, each day which is three
months after the first day of such Interest Period and the last
day of such Interest Period.
"Interest Period" shall mean with respect to any LIBOR Rate
Loan, (i) initially, the period commencing on the Borrowing Date
or conversion date, as the case may be, with respect to such
LIBOR Rate Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in the notice of
borrowing or notice of conversion given with respect thereto and
(ii) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such LIBOR
Rate Loan and ending one, two, three or six months thereafter, as
selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to
the last day of the then current Interest Period with respect
thereto; provided, however, (A) if any Interest Period pertaining
to a LIBOR Rate Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding Business Day, (B) any Interest Period pertaining to a
LIBOR Rate Loan that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
relevant calendar month, (C) if the Borrower shall fail to give
notice as provided above, the Borrower shall be deemed to have
selected an Alternate Base Rate Loan to replace the affected
LIBOR Rate Loan, (D) any Interest Period in respect of any Loan
that would otherwise extend beyond the Revolving Commitment
Termination Date is due on the
10
Revolving Commitment Termination Date, and (E) no more than six (6)
LIBOR Rate Loans may be in effect at any time. For purposes hereof,
LIBOR Rate Loans with different Interest Periods shall be considered
as separate LIBOR Rate Loans, even if they shall begin on the same
date and have the same duration, although borrowings, extensions and
conversions may, in accordance with the provisions hereof, be
combined at the end of existing Interest Periods to constitute a
new LIBOR Rate Loan with a single Interest Period.
"Issuing Lender" shall mean (i) Wachovia, (ii) with respect
to the Existing Letters of Credit, Bank of America, N.A. or
Wachovia, and (iii) with respect to any extensions, renewals or
replacements of the Existing Letters of Credit, either Wachovia
or Bank of America, N.A.
"Issuing Lender Fees" shall have the meaning set forth in
Section 2.5(c).
"Joinder Agreement" shall mean a Joinder Agreement
substantially in the form of Schedule 5.12, executed and
delivered by an Additional Credit Party in accordance with the
provisions of Section 5.12.
"Lender" shall have the meaning set forth in the first
paragraph of this Agreement.
"Letters of Credit" shall mean any letter of credit issued
by the Issuing Lender pursuant to the terms hereof, as such
Letters of Credit may be amended, modified, extended, renewed or
replaced from time to time.
"Letter of Credit Fee" shall have the meaning set forth in
Section 2.5(b).
"LIBOR" shall mean, for any LIBOR Rate Loan for any Interest
Period therefor, the rate 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,
that 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
"LIBOR" shall mean, for any LIBOR Rate Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if
necessary, to the 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
(rounded upwards, if necessary, to the nearest 1/100 of 1%). If,
for any reason, neither of such rates is available, then "LIBOR"
shall mean the rate per annum at which, as determined by the
Administrative Agent, Dollars in an amount comparable to the
Loans then requested are being offered to leading banks at
approximately 11:00 A.M. London time, two (2) Business Days prior
to the commencement of the applicable Interest Period for
settlement in immediately available funds by leading banks in the
London interbank market for a period equal to the Interest Period
selected.
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"LIBOR Lending Office" shall mean, initially, the office of
each Lender designated as such Lender's LIBOR Lending Office
shown on Schedule 9.2; and thereafter, such other office of such
Lender as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office of such
Lender at which the LIBOR Rate Loans of such Lender are to be
made.
"LIBOR Rate" shall mean a rate per annum (rounded upwards,
if necessary, to the next higher 1/100th of 1%) determined by the
Administrative Agent pursuant to the following formula:
LIBOR Rate = LIBOR
____________________________
1.00 - Eurodollar Reserve Percentage
"LIBOR Rate Loan" shall mean Loans the rate of interest
applicable to which is based on the LIBOR Rate.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever (including, without limitation,
any conditional sale or other title retention agreement and any
Capital Lease having substantially the same economic effect as
any of the foregoing).
"Loan" shall mean a Revolving Loan and/or a Swingline Loan,
as appropriate.
"LOC Commitment" shall mean the commitment of the Issuing
Lender to issue Letters of Credit and with respect to each
Lender, the commitment of such Lender to purchase participation
interests in the Letters of Credit up to such Lender's LOC
Committed Amount as specified in Schedule 2.1(a), as such amount
may be reduced from time to time in accordance with the
provisions hereof.
"LOC Commitment Percentage" shall mean, for each Lender, the
percentage identified as its LOC Commitment Percentage on
Schedule 2.1(a), as such percentage may be modified in connection
with any assignment made in accordance with the provisions of
Section 9.6(c).
"LOC Committed Amount" shall mean, collectively, the
aggregate amount of all of the LOC Commitments of the Lenders to
issue and participate in Letters of Credit as referenced in
Section 2.4 and, individually, the amount of each Lender's LOC
Commitment as specified in Schedule 2.1(a).
"LOC Documents" shall mean, 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 (b) any collateral
security for such obligations.
12
"LOC Obligations" shall mean, 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 the Issuing Lender but not theretofore reimbursed.
"Mandatory Borrowing" shall have the meaning set forth in
Section 2.3(b)(ii) or Section 2.4(e), as the context may require.
"Material Adverse Effect" shall mean a material adverse
effect on (a) the business, operations, property or condition
(financial or otherwise) of the Borrower and its Subsidiaries
taken as a whole, (b) the ability of the Borrower and the
Guarantors, taken as a whole, to perform their obligations, when
such obligations are required to be performed, under this
Agreement, any of the Notes or any other Credit Document or (c)
the validity or enforceability of this Agreement, any of the
Notes or any of the other Credit Documents or the rights or
remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
"Material Domestic Subsidiary" shall mean (a) any Domestic
Subsidiary of the Borrower which owns assets as of the Closing
Date or as of the end of the most recent fiscal year thereafter
in excess of ten percent (10%) of the Consolidated Total Assets,
(b) any Domestic Subsidiary of the Borrower whose EBITDA for the
most recent fiscal year is in excess of five percent (5%) of the
Consolidated EBITDA (as shown on the consolidated financial
statements of the Borrower then most recently delivered), or (c)
in the case of a Domestic Subsidiary which has subsidiaries whose
EBITDA consolidated with such subsidiaries for the most recent
fiscal year is in excess of five percent (5%) of the Consolidated
EBITDA (as shown on the consolidated financial statements of the
Borrower then most recently delivered), such Domestic Subsidiary
and each of its consolidated subsidiaries which are Domestic
Subsidiaries.
"Materials of Environmental Concern" shall mean any gasoline
or petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances,
materials or wastes, defined or regulated as such in or under any
Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" shall mean a Plan which is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Note" or "Notes" shall mean the Revolving Notes and/or the
Swingline Note, collectively, separately or individually, as
appropriate.
"Notice of Borrowing" shall mean the written notice of
borrowing as referenced and defined in Section 2.1(b)(i) or
2.3(b)(i), as appropriate.
13
"Notice of Conversion" shall mean the written notice of
extension or conversion as referenced and defined in Section
2.10.
"Obligations" shall mean, collectively, Loans and LOC
Obligations.
"Participant" shall have the meaning set forth in Section
9.6(b).
"Participation Interest" shall mean the purchase by a Lender
of a participation interest in Swingline Loans as provided in
Section 2.3(b)(ii) or in Letters of Credit as provided in Section
2.4(c).
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisition" shall mean an Acquisition by the
Borrower or any Subsidiary of the Borrower for the fair market
value of the capital stock or Property acquired, provided that
(a) the capital stock or Property acquired in such Acquisition
relates to a line of business reasonably similar to the business
of the Borrower and its Subsidiaries engaged in on the Closing
Date; (b) in the case of an Acquisition of the capital stock of
another Person, (i) the board of directors (or other comparable
governing body) of such other Person shall have duly approved
such Acquisition and (ii) such Person shall become a wholly-owned
direct or indirect Subsidiary of the Borrower; (c) the
representations and warranties made by the Borrower in any Credit
Document shall be true and correct in all material respects at
and as if made as of the date of such Acquisition (after giving
effect thereto) except to the extent such representations and
warranties expressly relate to an earlier date and no Default or
Event of Default exists as of the date of such Acquisition (after
giving effect thereto), (d) if the aggregate consideration for
such Acquisition is less than 10% of Consolidated Total Assets,
upon giving effect to such Acquisition on a Pro Forma Basis, the
Borrower will be in compliance with all of the financial
covenants set forth in Section 5.8 and (e) if the aggregate
consideration for such Acquisition exceeds 10% of the Borrower's
Consolidated Total Assets, the Borrower shall have delivered to
the Agent a Pro Forma Compliance Certificate demonstrating that,
upon giving effect to the Acquisition on a Pro Forma Basis, the
Borrower will be in compliance with all of the financial
covenants set forth in Section 5.8.
"Permitted Investments" shall mean:
(a) cash and Cash Equivalents;
(b) receivables owing to the Borrower or any of its
Subsidiaries or any receivables and advances to suppliers,
in each case if created, acquired or made in the ordinary
course of business and payable or dischargeable in
accordance with customary trade terms;
(c) investments (including debt obligations) received
in connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent
14
obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(d) investments, acquisitions or transactions
permitted under Sections 6.1 or 6.2;
(e) investments existing as of the Closing Date and
set forth in Schedule 6.5;
(f) loans to employees in connection with the award of
convertible bonds or stock under a stock incentive plan,
stock option plan or other equity-based compensation plan or
arrangement; provided, that the aggregate amount of such
Investments at any time outstanding (calculated on the
exercise price of such shares) together with Investments
described in clauses (g), (h) and (i) shall not exceed
fifteen percent (15%) of Consolidated Total Assets;
(g) other advances or loans to employees, shareholders
or agents; provided, that the aggregate amount of such
Investments at any time outstanding together with
Investments described in clauses (f), (h) and (i) shall not
exceed fifteen percent (15%) of Consolidated Total Assets;
(h) investments in Foreign Subsidiaries, Domestic
Subsidiaries which are not Credit Parties or minority
interests in domestic or foreign joint ventures; provided,
that the aggregate amount of such Investments at any time
outstanding together with Investments described in clauses
(f), (g) and (i) shall not exceed fifteen percent (15%) of
Consolidated Total Assets;
(i) additional loan advances and/or investments of a
nature not contemplated by the foregoing clauses hereof;
provided, that the aggregate amount of such Investments at
any time outstanding together with Investments described in
clauses (f), (g) and (h) shall not exceed fifteen percent
(15%) of Consolidated Total Assets.
As used herein, "investment" means all investments, in cash
or by delivery of property made, directly or indirectly in, to or
from any Person, whether by acquisition of shares of Capital
Stock, property, assets, indebtedness or other obligations or
securities or by loan advance, capital contribution or otherwise.
"Permitted Liens" means:
(a) Liens existing as of the Closing Date and set
forth on Schedule 6.2; provided that (i) no such Lien shall
at any time be extended to or cover any Property other than
the Property subject thereto on the Closing Date (provided,
however, that Liens on new Property which arise in
replacement of Liens on previously owned Property to the
extent that such new Property is acquired through like-kind
exchanges shall be permitted hereunder) and (ii) each such
Lien shall secure only those obligations which it secures on
15
the date hereof and extensions, renewals and replacements
thereof that do not increase the outstanding principal
amount thereof;
(b) Liens (other than Liens created or imposed under
ERISA) for taxes, assessments or governmental charges or
levies 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 subject to any
such Lien is not yet subject to foreclosure, sale or loss on
account thereof);
(c) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and suppliers
and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary
course of business, provided that such Liens secure only
amounts not yet due and payable or, if due and payable, are
unfiled and no other action has been taken to enforce the
same or 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);
(d) Liens (other than Liens created or imposed under
ERISA) incurred or deposits made in the ordinary course of
business in connection with workers' compensation,
unemployment insurance and other types of social security,
or to secure the performance of tenders, statutory
obligations, bids, leases, government contracts, performance
and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed
money);
(e) Liens in connection with attachments or judgments
(including judgment or appeal bonds) provided that the
judgments secured shall, within 30 days after the entry
thereof, have been discharged or execution thereof stayed
pending appeal, or shall have been discharged within 30 days
after the expiration of any such stay;
(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) Liens securing purchase money Indebtedness
(including Capital Leases), provided that any such Lien
attaches only to the Property financed and such Lien
attaches thereto concurrently with or within 90 days after
the acquisition thereof, provided, further, that all such
Liens, together with the Liens permitted by clauses (l) and
(n), do not encumber property and assets which constitute
more than twelve and one-half percent (12.5%) of
Consolidated Total Assets in the aggregate;
(h) leases or subleases granted to others not
interfering in any material respect with the business of the
Borrower and its Subsidiaries;
16
(i) any interest of title of a lessor under, and Liens
arising from UCC financing statements (or equivalent
filings, registrations or agreements in foreign
jurisdictions) relating to, leases permitted by this Credit
Agreement;
(j) normal and customary rights of setoff upon
deposits of cash in favor of banks or other depository
institutions;
(k) inchoate Liens arising under ERISA to secure
current service pension liabilities as they are incurred
under the provisions of any Plan;
(l) Liens assumed in connection with a Permitted
Acquisition, so long as such Liens cover only the assets
acquired pursuant to such Permitted Acquisition, provided,
that all such Liens, together with the Liens permitted by
clauses (g) and (n), do not encumber property and assets
which constitute more than twelve and one-half percent
(12.5%) of Consolidated Total Assets in the aggregate;
(m) Liens on rental property developed by the Borrower
or any Subsidiary of the Borrower; and
(n) additional Liens not otherwise permitted by the
foregoing clauses hereof; provided that such additional
Liens together with the Liens permitted by clauses (g) and
(l), do not encumber property and assets which constitute
more than twelve and one-half percent (12.5%) of
Consolidated Total Assets in the aggregate.
"Person" shall mean an individual, partnership, corporation,
limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
"Plan" shall mean, at any particular time, any employee
benefit plan which is covered by Title IV of ERISA and in respect
of which the Borrower or a Commonly Controlled Entity is (or, if
such plan were terminated at such time, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate" shall have the meaning set forth in the
definition of Alternate Base Rate.
"Pro Forma Basis" means, for purposes of calculating
compliance with each of the financial covenants set forth in
Section 5.8 in respect of a proposed transaction, that such
transaction shall be deemed to have occurred as of the first day
of the four fiscal-quarter period ending as of the most recent
fiscal quarter end preceding the date of such transaction with
respect to which the Administrative Agent has received the
information required pursuant to Section 5.1 In connection with
any calculation of the financial covenants set forth in Section
5.8 upon giving effect to a transaction on a Pro Forma Basis, (a)
any Indebtedness incurred by the Borrower in connection with such
transaction (i) shall be deemed to have been incurred as of the
first day of the applicable period and (ii) if such Indebtedness
has a floating or formula rate, shall have an implied rate of
interest for the applicable period for purposes of this
definition determined by
17
utilizing the rate which is or would be in effect with respect to
such Indebtedness as at the relevant date of determination, (b)
income statement items (whether positive or negative) attributable
to the Property acquired in such transaction or to the Acquisition
comprising such transaction, as applicable, shall be included to
the extent relating to the relevant period and (c) pro forma
adjustments may be included to the extent that such adjustments
give effect to events that are (i) directly attributable to such
transaction, (ii) expected to continue to be applicable to the
Borrower and (iii) factually supportable.
"Pro Forma Compliance Certificate" means a certificate of an
Responsible Officer of the Borrower delivered to the
Administrative Agent in connection with any Acquisition as
referred to in the definition of "Permitted Acquisition" set
forth in this Section 1.1, as applicable, and containing
reasonably detailed calculations, upon giving effect to the
applicable transaction on a Pro Forma Basis, of the Consolidated
Funded Debt to Consolidated Total Capitalization Ratio and
Interest Coverage Ratio as of the most recent fiscal quarter end
preceding the date of the applicable transaction with respect to
which the Administrative Agent shall have received the financial
information required pursuant to Section 5.1.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or
intangible.
"Purchasing Lenders" shall have the meaning set forth in
Section 9.6(c).
"Register" shall have the meaning set forth in Section
9.6(d).
"Reorganization" shall mean, with respect to any
Multiemployer Plan, the condition that such Plan is in
reorganization within the meaning of such term as used in Section
4241 of ERISA.
"Reportable Event" shall mean any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
thirty-day notice period is waived under PBGC Reg. 4043.
"Required Lenders" shall mean Lenders, other than Defaulting
Lenders, holding in the aggregate greater than 50% of (i) the
Revolving Commitments (and Participation Interests therein) or
(ii) if the Revolving Commitments have been terminated, the
outstanding Revolving Loans and Participation Interests
(including the Participation Interests of the Issuing Lender in
any Letters of Credit and of the Swingline Lender in any
Swingline Loans); provided that at any time there are three or
more Lenders, other than Defaulting Lenders, Required Lenders
shall be comprised of no fewer than three Lenders.
"Requirement of Law" shall mean, as to any Person, the
Certificate of Incorporation and By-laws or other organizational
or governing documents of such Person, and each law, treaty, rule
or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such
Person or any of its property is subject.
18
"Responsible Officer" shall mean (a) as to the Borrower, the
Chairman of the board of directors, the President and Chief
Executive Officer or the Chief Financial Officer or any Vice
President and (b) as to any Guarantor, any duly authorized
officer thereof.
"Restricted Payment" shall mean (a) any dividend or other
distribution, direct or indirect, on account of any shares of any
class of Capital Stock of the Borrower or any of its
Subsidiaries, now or hereafter outstanding, (b) any redemption,
retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any
class of Capital Stock of the Borrower or any of its
Subsidiaries, now or hereafter outstanding, or (c) any payment
made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class
of Capital Stock of the Borrower or any of its Subsidiaries, now
or hereafter outstanding.
"Revolving Commitment" shall mean, with respect to each
Lender, the commitment of such Lender to make Revolving Loans in
an aggregate principal amount at any time outstanding up to such
Lender's Revolving Committed Amount as specified in Schedule
2.1(a), as such amount may be reduced from time to time in
accordance with the provisions hereof.
"Revolving Commitment Percentage" shall mean, for each
Lender, the percentage identified as its Revolving Commitment
Percentage on Schedule 2.1(a), as such percentage may be modified
in connection with any assignment made in accordance with the
provisions of Section 9.6(c).
"Revolving Commitment Termination Date" shall mean May 27,
2009.
"Revolving Committed Amount" shall mean, collectively, the
aggregate amount of all Revolving Commitments as referenced in
Section 2.1(a), as such amount may be reduced from time to time
in accordance with the provisions hereof, and, individually, the
amount of each Lender's Revolving Commitment as specified on
Schedule 2.1(a).
"Revolving Loans" shall have the meaning set forth in
Section 2.1.
"Revolving Note" or "Revolving Notes" shall mean the
promissory notes of the Borrower in favor of each of the Lenders
evidencing the Revolving Loans provided pursuant to Section
2.1(e), individually or collectively, as appropriate, as such
promissory notes may be amended, modified, supplemented,
extended, renewed or replaced from time to time.
"S&P" shall mean Standard & Poor's Ratings Group, a division
of McGraw Hill, Inc.
"Sale Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a
party, providing for the leasing to the Borrower of any Property,
whether owned by the Borrower as of the Closing Date or later
acquired, which has been or is to be sold or transferred by the
Borrower to such Person or to any other Person from whom funds
have been, or are to be, advanced by such Person on the security
of such Property.
19
"Single Employer Plan" shall mean any Plan which is not a
Multiemployer Plan.
"Specified Sales" shall mean (a) the sale, transfer, lease,
exchange or other disposition of inventory, materials, equipment
and other Property in the ordinary course of business and (b) the
sale, transfer or other disposition of cash and Cash Equivalents,
so long as the Borrower or the applicable Subsidiary receives, in
return, cash, Cash Equivalents or other property having a fair
market value equal to the fair market value of such Cash
Equivalents.
"Subsidiary" shall mean, as to any Person, a corporation,
partnership, limited liability company or other entity of which
shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity
are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries"
in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Swingline Commitment" shall mean the commitment of the
Swingline Lender to make Swingline Loans in an aggregate
principal amount at any time outstanding up to the Swingline
Committed Amount, and the commitment of the Lenders to purchase
participation interests in the Swingline Loans as provided in
Section 2.3(b)(ii), as such amounts may be reduced from time to
time in accordance with the provisions hereof.
"Swingline Committed Amount" shall mean the amount of the
Swingline Lender's Swingline Commitment as specified in Section
2.3(a).
"Swingline Lender" shall mean Wachovia, in its capacity as
such.
"Swingline Loan" or "Swingline Loans" shall have the meaning
set forth in Section 2.3(a).
"Swingline Note" shall mean the promissory note of the
Borrower in favor of the Swingline Lender evidencing the
Swingline Loans provided pursuant to Section 2.3(d), as such
promissory note may be amended, modified, supplemented, extended,
renewed or replaced from time to time.
"Taxes" shall have the meaning set forth in Section 2.18.
"Tranche" shall mean the collective reference to LIBOR Rate
Loans whose Interest Periods begin and end on the same day. A
Tranche may sometimes be referred to as a "LIBOR Tranche".
20
"Transfer Effective Date" shall have the meaning set forth
in each Commitment Transfer Supplement.
"2.18 Certificate" shall have the meaning set forth in
Section 2.18.
"Type" shall mean, as to any Loan, its nature as an
Alternate Base Rate Loan, LIBOR Rate Loan or Swingline Loan, as
the case may be.
"Voting Stock" means, with respect to any Person, Capital
Stock issued by such Person the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions)
of such Person, even though the right so to vote has been
suspended by the happening of such a contingency.
"Wachovia" shall mean Wachovia Bank, National Association, a
national banking association.
Section 1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms
defined in this Agreement shall have the defined meanings
when used in the Notes or other Credit Documents or any
certificate or other document made or delivered pursuant
hereto.
(b) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(c) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms
of such terms.
Section 1.3 Accounting Terms.
Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared in accordance with GAAP
applied on a basis consistent with the most recent audited
consolidated financial statements of the Borrower delivered to
the Lenders; provided that, if the Borrower notifies the
Administrative Agent that it wishes to amend any covenant in
Section 5.8 to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent
notifies the Borrower that the Required Lenders wish to amend
Section 5.8 for such purpose), then the Borrower's compliance
with such covenant shall be determined on the basis of GAAP in
effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant
is amended in a manner satisfactory to the Borrower and the
Required Lenders.
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The Borrower shall deliver to the Administrative Agent and
each Lender at the same time as the delivery of any annual or
quarterly financial statements given in accordance with the
provisions of Section 5.1, (a) a description in reasonable detail
of any material change in the application of accounting
principles employed in the preparation of such financial
statements from those applied in the most recently preceding
quarterly or annual financial statements as to which no objection
shall have been made in accordance with the provisions above and
(b) a reasonable estimate of the effect on the financial
statements on account of such changes in application.
ARTICLE II
THE LOANS; AMOUNT AND TERMS
Section 2.1 Revolving Loans.
(a) Revolving Commitment. During the Commitment
Period, subject to the terms and conditions hereof, each
Lender severally agrees to make revolving credit loans
("Revolving Loans") to the Borrower from time to time for
the purposes hereinafter set forth; provided, however, that
(i) with regard to each Lender individually, the sum of such
Lender's share of outstanding Revolving Loans plus such
Lender's Revolving Commitment Percentage of Swingline Loans
plus such Lender's LOC Commitment Percentage of LOC
Obligations shall not exceed such Lender's Revolving
Commitment Percentage of the aggregate Revolving Committed
Amount, and (ii) with regard to the Lenders collectively,
the sum of the aggregate amount of outstanding Revolving
Loans plus Swingline Loans plus LOC Obligations, shall not
exceed the Revolving Committed Amount. For purposes hereof,
the aggregate amount available hereunder shall be TWO
HUNDRED FIFTY MILLION DOLLARS ($250,000,000) (as such
aggregate maximum amount may be reduced from time to time as
provided in Section 2.6, the "Revolving Committed Amount").
Revolving Loans may consist of Alternate Base Rate Loans or
LIBOR Rate Loans, or a combination thereof, as the Borrower
may request, and may be repaid and reborrowed in accordance
with the provisions hereof. LIBOR Rate Loans shall be made
by each Lender at its LIBOR Lending Office and Alternate
Base Rate Loans at its Domestic Lending Office.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall
request a Revolving Loan borrowing by written notice
(or telephone notice promptly confirmed in writing
which confirmation may be by fax) to the Administrative
Agent not later than 11:00 A.M. (Charlotte, North
Carolina time) on the Business Day prior to the date of
requested borrowing in the case of Alternate Base Rate
Loans, and on the third Business Day prior to the date
of the requested borrowing in the case of LIBOR Rate
Loans. Each such request for borrowing shall be
irrevocable and shall specify (A) that a Revolving Loan
is requested, (B) the date of the requested
22
borrowing (which shall be a Business Day), (C) the aggregate
principal amount to be borrowed, (D) whether the
borrowing shall be comprised of Alternate Base Rate
Loans, LIBOR Rate Loans or a combination thereof, and
if LIBOR Rate Loans are requested, the Interest
Period(s) therefor. A form of Notice of Borrowing (a
"Notice of Borrowing") is attached as Schedule
2.1(b)(i). If the Borrower shall fail to specify in
any such Notice of Borrowing (I) an applicable Interest
Period in the case of a LIBOR Rate Loan, then such
notice shall be deemed to be a request for an Interest
Period of one month, or (II) the Type of Revolving Loan
requested, then such notice shall be deemed to be a
request for an Alternate Base Rate Loan hereunder. The
Administrative Agent shall give notice to each Lender
promptly upon receipt of each Notice of Borrowing, the
contents thereof and each such Lender's share thereof.
(ii) Minimum Amounts. Each Revolving Loan
borrowing that is a LIBOR Rate Loan shall be in a
minimum aggregate amount of $2,500,000 and integral
multiples of $500,000 in excess thereof (or the
remaining amount of the Revolving Committed Amount, if
less). Each Revolving Loan borrowing that is an
Alternate Base Rate Loan shall be in a minimum
aggregate amount of $500,000 and integral multiples of
$100,000 in excess thereof (or the remaining amount of
the Revolving Committed Amount, if less).
(iii) Advances. Each Lender will make
its Revolving Commitment Percentage of each Revolving
Loan borrowing available to the Administrative Agent
for the account of the Borrower at the office of the
Administrative Agent specified in Schedule 9.2, or at
such other office as the Administrative Agent may
designate in writing, by 1:00 P.M. (Charlotte, North
Carolina time) on the date specified in the applicable
Notice of Borrowing in Dollars and in funds immediately
available to the Administrative Agent. Such borrowing
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 with the aggregate
of the amounts made available to the Administrative
Agent by the Lenders and in like funds as received by
the Administrative Agent.
(c) Repayment. The principal amount of all Revolving
Loans shall be due and payable in full on the Revolving
Commitment Termination Date.
(d) Interest. Subject to the provisions of Section
2.9, Revolving Loans shall bear interest as follows:
(i) Alternate Base Rate Loans. During such
periods as Revolving Loans shall be comprised of
Alternate Base Rate Loans, each such Alternate Base
Rate Loan shall bear interest at a per annum rate equal
to the sum of the Alternate Base Rate plus the
Applicable Margin; and
23
(ii) LIBOR Rate Loans. During such periods
as Revolving Loans shall be comprised of LIBOR Rate
Loans, each such LIBOR Rate Loan shall bear interest at
a per annum rate equal to the sum of the LIBOR Rate
plus the Applicable Margin.
Interest on Revolving Loans shall be payable in arrears on
each Interest Payment Date.
(e) Revolving Notes. Each Lender's Revolving
Commitment Percentage of the Revolving Loans shall be
evidenced by a duly executed promissory note of the Borrower
to such Lender in substantially the form of Schedule 2.1(e).
Section 2.2 [Intentionally Omitted].
Section 2.3 Swingline Loan Subfacility.
(a) Swingline Commitment. During the Commitment
Period, subject to the terms and conditions hereof, the
Swingline Lender, in its individual capacity, agrees to make
certain revolving credit loans to the Borrower (each a
"Swingline Loan" and, collectively, the "Swingline Loans")
for the purposes hereinafter set forth; provided, however,
(i) the aggregate amount of Swingline Loans outstanding at
any time shall not exceed TEN MILLION DOLLARS ($10,000,000)
(the "Swingline Committed Amount"), and (ii) the sum of the
aggregate amount of outstanding Revolving Loans plus
Swingline Loans plus LOC Obligations shall not exceed the
Revolving Committed Amount. Swingline Loans hereunder may
be repaid and reborrowed in accordance with the provisions
hereof.
(b) Swingline Loan Borrowings.
(i) Notice of Borrowing and Disbursement.
The Swingline Lender will make Swingline Loans
available to the Borrower on any Business Day upon
request made by the Borrower not later than 12:00 Noon
(Charlotte, North Carolina time) on such Business Day.
A notice of request for Swingline Loan borrowing shall
be made in the form of Schedule 2.1(b)(i) with
appropriate modifications. Swingline Loan borrowings
hereunder shall be made in minimum amounts of $100,000
and in integral amounts of $100,000 in excess thereof.
(ii) Repayment of Swingline Loans. Each
Swingline Loan borrowing shall be due and payable on
the Revolving Commitment Termination Date. The
Swingline Lender may, at any time, in its sole
discretion, by written notice to the Borrower and the
Administrative Agent, demand repayment of its Swingline
Loans by way of a Revolving Loan borrowing, in which
case the Borrower shall be deemed to have requested a
Revolving Loan borrowing comprised entirely of
Alternate Base Rate Loans in the amount of such
Swingline Loans; provided, however, that, in the
following circumstances, any such demand shall also be
deemed to have been given one Business Day prior to
each of (A) the Revolving
24
Commitment Termination Date, (B) the occurrence of any
Event of Default described in Section 7.1(e), (C) upon
acceleration of the Credit Party Obligations hereunder,
whether on account of an Event of Default described in
Section 7.1(e) or any other Event of Default and (D) the
exercise of remedies in accordance with the provisions of
Section 7.2 hereof (each such Revolving Loan borrowing made
on account of any such deemed request therefor as provided
herein being hereinafter referred to as a "Mandatory
Borrowing"). Each Lender hereby irrevocably agrees to
make such Revolving Loans promptly upon any such
request or deemed request on account of each Mandatory
Borrowing in the amount and in the manner specified in
the preceding sentence and on the same such date
notwithstanding (A) the amount of Mandatory Borrowing
may not comply with the minimum amount for borrowings
of Revolving Loans otherwise required hereunder, (B)
whether any conditions specified in Section 4.2 are
then satisfied, (C) whether a Default or an Event of
Default then exists, (D) failure of any such request or
deemed request for Revolving Loans to be made by the
time otherwise required in Section 2.1(b)(i), (E) the
date of such Mandatory Borrowing, or (F) any reduction
in the Revolving Committed Amount or termination of the
Revolving Commitments immediately prior to such
Mandatory Borrowing or contemporaneously therewith. 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 Lender hereby
agrees that it shall forthwith purchase (as of the date
the Mandatory Borrowing would otherwise have occurred,
but adjusted for any payments received from the
Borrower on or after such date and prior to such
purchase) from the Swingline Lender such participations
in the outstanding Swingline Loans as shall be
necessary to cause each such Lender to share in such
Swingline Loans ratably based upon its respective
Revolving Commitment Percentage (determined before
giving effect to any termination of the Commitments
pursuant to Section 7.2), provided that (A) all
interest payable on the Swingline Loans shall be for
the account of the Swingline Lender until the date as
of which the respective participation is purchased, and
(B) at the time any purchase of participations pursuant
to this sentence is actually made, the purchasing
Lender shall be required to pay to the Swingline Lender
interest on the principal amount of such participation
purchased for each day from and including the day upon
which the Mandatory Borrowing would otherwise have
occurred to but excluding the date of payment for such
participation, at the rate equal to, if paid within two
(2) Business Days of the date of the Mandatory
Borrowing, the Federal Funds Effective Rate, and
thereafter at a rate equal to the Alternate Base Rate.
(c) Interest on Swingline Loans. Subject to the
provisions of Section 2.9, Swingline Loans shall bear
interest at a per annum rate equal to the Alternate Base
Rate plus the Applicable Margin for Revolving Loans that are
Alternate Base Rate Loans. Interest on Swingline Loans
shall be payable in arrears on each Interest Payment Date.
25
(d) Swingline Note. The Swingline Loans shall be
evidenced by a duly executed promissory note of the Borrower
to the Swingline Lender in the original amount of the
Swingline Committed Amount and substantially in the form of
Schedule 2.3(d).
Section 2.4 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, during the Commitment Period the Issuing Lender
shall issue, and the Lenders shall participate in, Letters
of Credit for the account of the Borrower from time to time
upon request in a form acceptable to the Issuing Lender;
provided, however, that (i) the aggregate amount of LOC
Obligations shall not at any time exceed FIFTY MILLION
DOLLARS ($50,000,000) (the "LOC Committed Amount"), (ii) the
sum of the aggregate amount of Revolving Loans plus
Swingline Loans plus LOC Obligations shall not at any time
exceed the Revolving Committed Amount, (iii) all Letters of
Credit shall be denominated in U.S. Dollars and (iv) Letters
of Credit shall be issued for lawful corporate purposes and
may be issued as standby letters of credit, including in
connection with workers' compensation and other insurance
programs, and trade letters of credit. Except as otherwise
expressly agreed upon by all the Lenders, no Letter of
Credit shall have an original expiry date more than twelve
(12) months from the date of issuance; provided, however, so
long as no Default or Event of Default has occurred and is
continuing and subject to the other terms and conditions to
the issuance of Letters of Credit hereunder, the expiry
dates of Letters of Credit may be extended annually or
periodically from time to time on the request of the
Borrower or by operation of the terms of the applicable
Letter of Credit to a date not more than twelve (12) months
from the date of extension; provided, further, that no
Letter of Credit, as originally issued or as extended, shall
have an expiry date extending beyond the Revolving
Commitment Termination Date. Each Letter of Credit shall
comply with the related LOC Documents. The issuance and
expiry date of each Letter of Credit shall be a Business
Day. Any Letters of Credit issued hereunder shall be in a
minimum original face amount of $100,000. Wachovia shall be
the Issuing Lender on all Letters of Credit issued after the
Closing Date, provided, that Bank of America, N.A. may be
the Issuing Lender on Letters of Credit issued after the
Closing Date as renewals or replacements of the Existing
Letters of Credit issued by Bank of America, N.A. prior to
the Closing Date.
(b) Notice and Reports. The request for the issuance
of a Letter of Credit shall be submitted to the Issuing
Lender at least five (5) Business Days prior to the
requested date of issuance. The Issuing Lender will
promptly upon request provide to the Administrative Agent
for dissemination to the Lenders a detailed report
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 any prior report, and
including therein, among other things, the account party,
the beneficiary, the face amount, 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
26
of Credit. The Issuing Lender will provide to the Administrative
Agent promptly upon request a summary report of the nature and
extent of LOC Obligations then outstanding.
(c) Participations. Each Lender 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 LOC 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
LOC Commitment Percentage of the obligations arising under
such Letter of Credit. Without limiting the scope and
nature of each Lender's participation in any Letter of
Credit, to the extent that the Issuing Lender has not been
reimbursed as required hereunder or under any LOC Document,
each such Lender shall pay to the Issuing Lender its LOC
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. Except with respect to any liability
incurred by such Issuing Lender arising out of the gross
negligence or willful misconduct of the Issuing Lender, the
obligation of each Lender 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 and the Administrative Agent. The
Borrower shall reimburse the Issuing Lender on the day of
drawing under any Letter of Credit (either with the proceeds
of a Swingline Loan or 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
Issuing Lender as provided herein, the unreimbursed amount
of such drawing shall bear interest at a per annum rate
equal to the Alternate Base Rate plus two percent (2%).
Unless the Borrower shall immediately notify the Issuing
Lender and the Administrative Agent of its intent to
otherwise reimburse the Issuing Lender, the Borrower shall
be deemed to have requested a Swingline Loan, or if and to
the extent Swingline Loans shall not be available, a
Revolving Loan 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's
reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any
rights of set-off, counterclaim or defense to payment the
Borrower may claim or have against the Issuing Lender, the
Administrative Agent, 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
Borrower to receive consideration or the legality, validity,
regularity or unenforceability of the Letter of Credit. The
Issuing Lender will promptly notify the other Lenders of the
amount of any unreimbursed drawing and each Lender shall
promptly pay to the Administrative Agent
27
for the account of the Issuing Lender in Dollars and in
immediately available funds, the amount of such Lender's LOC
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. (Charlotte, North Carolina time), otherwise
such payment shall be made at or before 12:00 Noon (Charlotte,
North Carolina time) on the Business Day next succeeding the
day such notice is received. If such Lender does not pay
such amount to the Issuing Lender in full upon such request,
such Lender 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 of such
drawing until such Lender pays such amount to the Issuing
Lender in full at a rate per annum equal to, if paid within
two (2) Business Days of the date of drawing, the Federal
Funds Effective Rate and thereafter at a rate equal to the
Alternate Base Rate. Each Lender'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
Agreement or the Commitments hereunder, the existence of a
Default or Event of Default or the acceleration of the
Credit Party Obligations hereunder and shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Repayment with Revolving Loans. On any day on
which the Borrower shall have requested, or been deemed to
have requested, (i) a Swingline Loan borrowing to reimburse
a drawing under a Letter of Credit, the Swingline Lender
shall make the Swingline Loan advance pursuant to the terms
of the request or deemed request in accordance with the
provisions for Swingline Loan advances hereunder, or (ii) a
Revolving Loan to reimburse a drawing under a Letter of
Credit, the Administrative Agent shall give notice to the
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
entirely of Alternate Base Rate Loans (each such borrowing,
a "Mandatory Borrowing") shall be immediately made (without
giving effect to any termination of the Commitments pursuant
to Section 7.2) pro rata based on each Lender's respective
Revolving Commitment Percentage (determined before giving
effect to any termination of the Commitments pursuant to
Section 7.2) and in the case of both clauses (i) and (ii)
the proceeds thereof shall be paid directly to the Issuing
Lender for application to the respective LOC Obligations.
Each Lender hereby irrevocably agrees to make such Revolving
Loans immediately upon any such request or deemed request on
account of each Mandatory Borrowing in the amount and in the
manner specified in the preceding sentence and on the same
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 4.2 are
then satisfied, (iii) whether a Default or an Event of
Default then exists, (iv) failure for any such request or
deemed request for Revolving Loan to be made by the time
otherwise required in Section 2.1(b), (v) the date of such
Mandatory Borrowing, or (vi) any reduction in the Revolving
Committed Amount after any such Letter of Credit may have
been drawn upon; provided, however, that in the event any
such Mandatory Borrowing should be less than the minimum
amount for borrowings of Revolving Loans
28
otherwise provided in Section 2.1(b)(ii), the Borrower shall
pay to the Administrative Agent for its own account an
administrative fee of $500. 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 Interests 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 (2) Business Days of
such date, the Federal Funds Effective Rate, and thereafter
at a rate equal to the Alternate Base Rate.
(f) Modification, Extension. The issuance of any
supplement, modification, amendment, renewal, or extension
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.
(g) Uniform Customs and Practices. The Issuing Lender
shall 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 (the "UCP"), in which case the UCP may be
incorporated therein and deemed in all respects to be a part
thereof.
Section 2.5 Fees.
(a) Commitment Fee. In consideration of the Revolving
Commitment, the Borrower agrees to pay to the Administrative
Agent for the ratable benefit of the Lenders a commitment
fee (the "Commitment Fee") in an amount equal to the
Applicable Margin per annum on the average daily unused
amount of the aggregate Revolving Committed Amount. For
purposes of computation of the Commitment Fee, LOC
Obligations shall be considered usage. The Commitment Fee
shall be payable quarterly in arrears on the 15th day
following the last day of each calendar quarter for the
prior calendar quarter.
(b) Letter of Credit Fees. In consideration of the
LOC Commitments, the Borrower agrees to pay to the
Administrative Agent, for the ratable benefit of the
Lenders, a fee (the "Letter of Credit Fee") equal to the
Applicable Margin per annum on the average daily maximum
amount available to be drawn under each Letter of Credit
from the date of issuance to the date of expiration. In
addition to such Letter of Credit Fee, the Issuing Lender
may charge, and retain for its own account without sharing
by the other Lenders, an additional facing fee of one-eighth
of one percent (1/8%) per annum on the average daily maximum
amount available to be drawn under each such Letter of
Credit issued by it. The Administrative Agent shall
promptly pay over to the Lenders (including the Issuing
Lender) the Letter of Credit Fee. The Letter of Credit Fee
shall be
29
payable quarterly in arrears on the 15th day following the
last day of each calendar quarter for the prior calendar quarter.
(c) Issuing Lender Fees. In addition to the Letter of
Credit Fees payable pursuant to subsection (b) hereof, the
Borrower shall pay to the Issuing Lender for its own account
without sharing by the other Lenders the reasonable and
customary charges from time to time of the Issuing Lender
with respect to the amendment, transfer, administration,
cancellation and conversion of, and drawings under, such
Letters of Credit (collectively, the "Issuing Lender Fees").
(d) Administrative Fee. The Borrower agrees to pay to
the Administrative Agent the annual administrative fee as
described in the Fee Letter.
Section 2.6 Commitment Reductions.
(a) Voluntary Reductions. The Borrower shall have the
right to terminate or permanently reduce the unused portion
of the Revolving Committed Amount at any time or from time
to time upon not less than five Business Days' prior notice
to the Administrative Agent (which shall notify the Lenders
thereof as soon as practicable) of each such termination or
reduction, which notice shall specify the effective date
thereof and the amount of any such reduction which shall be
in a minimum amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and shall be irrevocable and
effective upon receipt by the Administrative Agent, provided
that no such reduction or termination shall be permitted if
after giving effect thereto, and to any prepayments of the
Revolving Loans made on the effective date thereof, the sum
of the then outstanding aggregate principal amount of the
Revolving Loans plus Swingline Loans plus LOC Obligations
would exceed the Revolving Committed Amount.
(b) Revolving Commitment Termination Date. The
Revolving Commitment, the LOC Commitment and the Swingline
Commitment shall automatically terminate on the Revolving
Commitment Termination Date.
Section 2.7 Prepayments.
(a) Optional Prepayments. The Borrower shall have the
right to prepay Loans, in whole or in part from time to time;
provided, however, that each partial prepayment of Revolving
Loans shall be in a minimum principal amount of $1,000,000 and
integral multiples of $100,000 in excess thereof and each
prepayment of Swingline Loans shall be in a minimum principal
amount of $100,000 and integral multiples of $50,000 in excess
thereof. The Borrower shall give three Business Days'
irrevocable notice in the case of LIBOR Rate Loans and one
Business Day's irrevocable notice in the case of Alternate Base
Rate Loans, to the Administrative Agent (which shall notify the
Lenders thereof as soon as practicable).
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(b) Mandatory Prepayments. If at any time, the aggregate
principal amount of Loans and LOC Obligations shall exceed the
Revolving Committed Amount, the Borrower shall immediately make
payment on the Loans in an amount sufficient to eliminate the
deficiency.
(c) Application. Unless otherwise specified by the
Borrower, prepayments made hereunder shall be applied first to
Revolving Loans which are Base Rate Loans, then to Revolving
Loans which are LIBOR Rate Loans in direct order of Interest
Period maturities. All prepayments under Section 2.7(a) and
2.7(b) shall be subject to Section 2.17, but otherwise without
premium or penalty. Interest on the principal amount prepaid
shall be payable on the next occurring Interest Payment Date that
would have occurred had such loan not been prepaid or, at the
request of the Administrative Agent, interest on the principal
amount prepaid shall be payable on any date that a prepayment is
made hereunder through the date of prepayment. Amounts prepaid
on the Swingline Loan and the Revolving Loans may be reborrowed
in accordance with the terms hereof.
(d) Hedging Obligations Unaffected. Any prepayment made
pursuant to this Section 2.7 shall not affect the obligations of
the Borrower or any of its Subsidiaries to continue to make
payments under any Hedging Agreement with any Hedging Agreement
Provider, which shall remain in full force and effect
notwithstanding such prepayment, subject to the terms of such
Hedging Agreements.
Section 2.8 Minimum Principal Amount of Tranches.
All borrowings, payments and prepayments in respect of
Revolving Loans shall be in such amounts and be made pursuant to
such elections so that after giving effect thereto the aggregate
principal amount of the Revolving Loans comprising any Tranche
shall not be less than $2,500,000 or a whole multiple of $500,000
in excess thereof.
Section 2.9 Default Rate and Payment Dates.
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 hereunder or
under the other Credit Documents shall bear interest, payable on
demand, at a per annum rate 2% greater than the rate which would
otherwise be applicable (or if no rate is applicable, whether in
respect of interest, fees or other amounts, then the Alternate
Base Rate plus 2%).
Section 2.10 Conversion Options.
(a) The Borrower may, in the case of Revolving Loans
elect from time to time to convert Alternate Base Rate Loans
to LIBOR Rate Loans, by giving the Administrative Agent at
least three Business Days' prior irrevocable written notice
of such election. A form of Notice of Conversion/ Extension
is attached as Schedule 2.10. If the date upon which an
Alternate Base Rate Loan is to be converted to a LIBOR Rate
Loan is not a Business Day, then such conversion shall be
made on the next succeeding Business Day and during the
period from such last day of an Interest Period to such
succeeding
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Business Day such Loan shall bear interest as if
it were an Alternate Base Rate Loan. All or any part of
outstanding Alternate Base Rate Loans may be converted as
provided herein, provided that (i) no Loan may be converted
into a LIBOR Rate Loan when any Default or Event of Default
has occurred and is continuing and (ii) partial conversions
shall be in an aggregate principal amount of $2,500,000 or a
whole multiple of $500,000 in excess thereof.
(b) Any LIBOR Rate Loans may be continued as such upon
the expiration of an Interest Period with respect thereto by
compliance by the Borrower with the notice provisions
contained in Section 2.10(a); provided, that no LIBOR Rate
Loan may be continued as such when any Default or Event of
Default has occurred and is continuing, in which case such
Loan shall be automatically converted to an Alternate Base
Rate Loan at the end of the applicable Interest Period with
respect thereto. If the Borrower shall fail to give timely
notice of an election to continue a LIBOR Rate Loan, or the
continuation of LIBOR Rate Loans is not permitted hereunder,
such LIBOR Rate Loans shall be automatically converted to
Alternate Base Rate Loans at the end of the applicable
Interest Period with respect thereto.
Section 2.11 Computation of Interest and Fees.
(a) Interest payable hereunder with respect to
Alternate Base Rate Loans shall be calculated on the basis
of a year of 365 days (or 366 days, as applicable) for the
actual days elapsed. All other fees, interest and all other
amounts payable hereunder shall be calculated on the basis
of a 360 day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of each determination of a LIBOR
Rate on the Business Day of the determination thereof. Any
change in the interest rate on a Loan resulting from a
change in the Alternate Base Rate shall become effective as
of the opening of business on the day on which such change
in the Alternate Base Rate shall become effective. The
Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of the effective date and the
amount of each such change.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this
Agreement shall be conclusive and binding on the Borrower
and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the computations
used by the Administrative Agent in determining any interest
rate.
Section 2.12 Pro Rata Treatment and Payments.
(a) Allocation of Payments Prior to Event of Default;
Payments Generally. Each borrowing of Revolving Loans and any
reduction of the Revolving Commitments shall be made pro rata
according to the respective Commitment Percentages of the
Lenders. Each payment under this Agreement or any Note shall be
applied, first, to any fees then due and owing by the Borrower
pursuant to Section 2.5, second, to interest then due and owing
in respect of the Notes
32
of the Borrower and, third, to principal then due and owing hereunder
and under the Notes of the Borrower. Each payment on account of any
fees pursuant to Section 2.5 shall be made pro rata in accordance
with the respective amounts due and owing (except as to the portion
of the Letter of Credit retained by the Issuing Lender and the
Issuing Lender Fees). Each optional prepayment on account of
principal of the Loans shall be applied, to such of the Loans as
the Borrower may designate (to be applied pro rata among the
Lenders); provided, that prepayments made pursuant to Section 2.15
shall be applied in accordance with such section. Each mandatory
prepayment on account of principal of the Loans shall be applied in
accordance with Section 2.7(b). All payments (including prepayments)
to be made by the Borrower on account of principal, interest and fees
shall be made without defense, set-off or counterclaim (except as
provided in Section 2.18(b)) and shall be made to the
Administrative Agent for the account of the Lenders at the
Administrative Agent's office specified on Schedule 9.2 in
Dollars and in immediately available funds not later than 1:00
P.M. (Charlotte, North Carolina time) on the date when due. The
Administrative Agent shall distribute such payments to the
Lenders entitled thereto promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the
LIBOR Rate Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of
principal, interest thereon shall be payable at the then
applicable rate during such extension. If any payment on a LIBOR
Rate Loan becomes due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would
be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding
Business Day.
(b) Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Agreement to the
contrary, after the exercise of remedies by the Administrative
Agent or the Lenders pursuant to Section 7.2 (or after the
Commitments shall automatically terminate and the Loans (with
accrued interest thereon) and all other amounts under the Credit
Documents (including without limitation the maximum amount of all
contingent liabilities under Letters of Credit) shall
automatically become due and payable in accordance with the terms
of such Section), all amounts collected or received by the
Administrative Agent or any Lender on account of the Credit Party
Obligations or any other 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 Administrative Agent in connection
with enforcing the rights of the Lenders under the Credit
Documents;
SECOND, to the payment of any fees owed to the
Administrative Agent;
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 or otherwise
with respect to the Credit Party Obligations owing to such
Lender;
33
FOURTH, to the payment of all of the Credit Party
Obligations consisting of accrued fees and interest, and
including with respect to any Hedging Agreement between any
Credit Party and any Hedging Agreement Provider, any fees,
premiums and scheduled periodic payments due under such
Hedging Agreement and any interest accrued thereon;
FIFTH, to the payment of the outstanding principal
amount of the Credit Party Obligations and the payment or
cash collateralization of the outstanding LOC Obligations,
and including with respect to any Hedging Agreement between
any Credit Party and any Hedging Agreement Provider, any
breakage, termination or other payments due under such
Hedging Agreement and any interest accrued thereon;
SIXTH, to all other Credit Party Obligations and other
obligations which shall have become due and payable under
the Credit Documents or otherwise 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.
In carrying out the foregoing, (i) amounts received shall be
applied in the numerical order provided until exhausted
prior to application to the next succeeding category;
(ii) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then
outstanding Loans and LOC Obligations held by such Lender
bears to the aggregate then outstanding Loans and LOC
Obligations) of amounts available to be applied pursuant to
clauses "THIRD", "FOURTH", "FIFTH" and "SIXTH" above; and
(iii) 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 (A) first, to reimburse the Issuing Lender from time
to time for any drawings under such Letters of Credit and
(B) 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 2.12(b). Notwithstanding the foregoing terms
of this Section 2.12, only payments under the Guaranty with
respect to Hedging Agreements with a Hedging Agreement
Provider shall be applied to obligations under any Hedging
Agreement.
Section 2.13 Non-Receipt of Funds by the Administrative
Agent.
(a) Unless the Administrative Agent shall have been
notified in writing by a Lender prior to the date a Loan is
to be made by such Lender (which notice shall be effective
upon receipt) that such Lender does not intend to make the
proceeds of such Loan available to the Administrative Agent,
the Administrative Agent may assume that such Lender has
made such proceeds available to the Administrative Agent on
such date, and the Administrative Agent may in reliance upon
such assumption (but shall not be required to) make
available to the Borrower a corresponding amount. If such
34
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 the applicable
borrowing pursuant to the Notice of Borrowing and (ii) from
a Lender at the Federal Funds Effective Rate.
(b) Unless the Administrative Agent shall have been
notified in writing by the Borrower, prior to the date on
which any payment is due from it hereunder (which notice
shall be effective upon receipt) that the Borrower does not
intend to make such payment, the Administrative Agent may
assume that such Borrower has made such payment when due,
and the Administrative Agent may in reliance upon such
assumption (but shall not be required to) make available to
each Lender on such payment date an amount equal to the
portion of such assumed payment to which such Lender is
entitled hereunder, and if the Borrower has not in fact made
such payment to the Administrative Agent, such Lender shall,
on demand, repay to the Administrative Agent the amount made
available to such Lender. If such amount is repaid to the
Administrative Agent on a date after the date such amount
was made available to such Lender, such Lender shall pay to
the Administrative Agent on demand interest on such amount
in respect of each day from the date such amount was made
available by the Administrative Agent to such Lender to the
date such amount is recovered by the Administrative Agent at
a per annum rate equal to the Federal Funds Effective Rate.
(c) A certificate of the Administrative Agent
submitted to the Borrower or any Lender with respect to any
amount owing under this Section 2.13 shall be conclusive in
the absence of manifest error.
Section 2.14 Inability to Determine Interest Rate.
Notwithstanding any other provision of this Agreement, if
(a) the Administrative Agent shall reasonably determine (which
determination shall be conclusive and binding absent manifest
error) that, by reason of circumstances affecting the relevant
market, reasonable and adequate means do not exist for
ascertaining LIBOR for such Interest Period, or (b) the Required
Lenders shall reasonably determine (which determination shall be
conclusive and binding absent manifest error) that the LIBOR Rate
does not adequately and fairly reflect the cost to such Lenders
of funding LIBOR Rate Loans that the Borrower has requested be
outstanding as a LIBOR Rate Loan during such Interest Period, the
Administrative Agent shall forthwith give telephone notice of
such determination, confirmed in writing, to the Borrower, and
the Lenders at least two Business Days prior to the first day of
such Interest Period. Unless the Borrower shall have
35
notified the Administrative Agent upon receipt of such telephone
notice that it wishes to rescind or modify its request regarding
such LIBOR Rate Loans, any Loans that were requested to be made as
LIBOR Rate Loans shall be made as Alternate Base Rate Loans and
any Loans that were requested to be converted into or continued
as LIBOR Rate Loans shall be converted into Alternate Base Rate
Loans. Until any such notice has been withdrawn by the
Administrative Agent, no further Loans shall be made as,
continued as, or converted into, LIBOR Rate Loans for the
Interest Periods so affected.
Section 2.15 Illegality.
Notwithstanding any other provision of this Agreement, if
the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof by the relevant
Governmental Authority to any Lender shall make it unlawful for
such Lender or its LIBOR Lending Office to make or maintain LIBOR
Rate Loans as contemplated by this Agreement or to obtain in the
interbank eurodollar market through its LIBOR Lending Office the
funds with which to make such Loans, (a) such Lender shall
promptly notify the Administrative Agent and the Borrower
thereof, (b) the commitment of such Lender hereunder to make
LIBOR Rate Loans or continue LIBOR Rate Loans as such shall
forthwith be suspended until the Administrative Agent shall give
notice that the condition or situation which gave rise to the
suspension shall no longer exist, and (c) such Lender's Loans
then outstanding as LIBOR Rate Loans, if any, shall be converted
on the last day of the Interest Period for such Loans or within
such earlier period as required by law as Alternate Base Rate
Loans. The Borrower hereby agrees promptly to pay any Lender,
upon its demand, any additional amounts necessary to compensate
such Lender for actual and direct costs (but not including
anticipated profits) reasonably incurred by such Lender in making
any repayment in accordance with this Section including, but not
limited to, any interest or fees payable by such Lender to
lenders of funds obtained by it in order to make or maintain its
LIBOR Rate Loans hereunder. A certificate as to any additional
amounts payable pursuant to this Section submitted by such
Lender, through the Administrative Agent, to the Borrower shall
be conclusive in the absence of manifest error. Each Lender
agrees to use reasonable efforts (including reasonable efforts to
change its LIBOR Lending Office) to avoid or to minimize any
amounts which may otherwise be payable pursuant to this Section;
provided, however, that such efforts shall not cause the
imposition on such Lender of any additional costs or legal or
regulatory burdens deemed by such Lender in its sole discretion
to be material.
Section 2.16 Requirements of Law.
(a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application
thereof 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 made subsequent
to the date hereof:
(i) shall subject such Lender to any tax of
any kind whatsoever with respect to any Letter of
Credit or any application relating thereto, any LIBOR
Rate Loan made by it, or change the basis of taxation
of payments to such Lender in
36
respect thereof (except for changes in the rate of tax
on the overall net income of such Lender);
(ii) 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 LIBOR Rate hereunder; or
(iii) shall impose on such Lender any
other condition;
and the result of any of the foregoing is to increase the
cost to such Lender of making or maintaining LIBOR Rate
Loans or participating in the Letters of Credit (or of
maintaining its obligation to make any such Loan or
participate in any Letter of Credit) or to reduce any amount
receivable hereunder or under any Note, then, in any such
case, the Borrower shall promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such
Lender for such additional cost or reduced amount receivable
which such Lender reasonably deems to be material as
determined by such Lender with respect to its LIBOR Rate
Loans or Letters of Credit. A certificate as to any
additional amounts payable pursuant to this Section
submitted by such Lender, through the Administrative Agent,
to the Borrower shall be conclusive in the absence of
manifest error. Each Lender agrees to use reasonable
efforts (including reasonable efforts to change its Domestic
Lending Office or LIBOR Lending Office, as the case may be)
to avoid or to minimize any amounts which might otherwise be
payable pursuant to this paragraph of this Section;
provided, however, that such efforts shall not cause the
imposition on such Lender of any additional costs or legal
or regulatory burdens deemed by such Lender to be material.
(b) If any Lender shall have reasonably determined
that the adoption of or any change in any Requirement of Law
regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or
directive regarding capital adequacy (whether or not having
the force of law) from any central bank or Governmental
Authority made subsequent to the date hereof does or shall
have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of
its obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to
capital adequacy) by an amount reasonably deemed by such
Lender to be material, then from time to time, within
fifteen (15) days after demand by such Lender, the Borrower
shall pay to such Lender such additional amount as shall be
certified by such Lender as being required to compensate it
for such reduction. Such a certificate as to any additional
amounts payable under this Section submitted by a Lender
(which certificate shall include a description of the basis
for the computation), through the Administrative Agent, to
the Borrower shall be conclusive absent manifest error.
37
(c) The agreements in this Section 2.16 shall survive
the termination of this Agreement and payment of the Notes
and all other amounts payable hereunder.
Section 2.17 Indemnity.
The Borrower hereby agrees to indemnify each Lender and to
hold such Lender harmless from any funding loss or expense which
such Lender may sustain or incur as a consequence of (a) default
by the Borrower in payment of the principal amount of or interest
on any Loan by such Lender in accordance with the terms hereof,
(b) default by the Borrower in accepting a borrowing after the
Borrower has given a notice in accordance with the terms hereof,
(c) default by the Borrower in making any prepayment after the
Borrower has given a notice in accordance with the terms hereof,
and/or (d) the making by the Borrower of a prepayment of a Loan,
or the conversion thereof, on a day which is not the last day of
the Interest Period with respect thereto, in each case including,
but not limited to, any such loss or expense arising from
interest or fees payable by such Lender to lenders of funds
obtained by it in order to maintain its Loans hereunder. A
certificate as to any additional amounts payable pursuant to this
Section submitted by any Lender, through the Administrative
Agent, to the Borrower (which certificate must be delivered to
the Administrative Agent within thirty days following such
default, prepayment or conversion) shall be conclusive in the
absence of manifest error. The agreements in this Section 2.17
shall survive termination of this Agreement and payment of the
Notes and all other amounts payable hereunder.
Section 2.18 Taxes.
(a) All payments made by the Borrower hereunder or
under any Note will be, except as provided in Section
2.18(b), made free and clear of, and without deduction or
withholding for, any present or future taxes, levies,
imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any Governmental
Authority or by any political subdivision or taxing
authority thereof or therein with respect to such payments
(but excluding any tax imposed on or measured by the net
income or profits of a Lender pursuant to the laws of the
jurisdiction in which it is organized or the jurisdiction in
which the principal office or applicable lending office of
such Lender is located or any subdivision thereof or
therein) and all interest, penalties or similar liabilities
with respect thereto (all such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges being
referred to collectively as "Taxes"). If any Taxes are so
levied or imposed, the Borrower agrees to pay the full
amount of such Taxes, and such additional amounts as may be
necessary so that every payment of all amounts due under
this Agreement or under any Note, after withholding or
deduction for or on account of any Taxes, will not be less
than the amount provided for herein or in such Note. The
Borrower will furnish to the Administrative Agent as soon as
practicable after the date the payment of any Taxes is due
pursuant to applicable law certified copies (to the extent
reasonably available and required by law) of tax receipts
evidencing such payment by the Borrower. The Borrower
agrees to indemnify and hold harmless each
38
Lender, and reimburse such Lender upon its written request,
for the amount of any Taxes so levied or imposed and paid by
such Lender.
(b) Each Lender that is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code)
agrees to deliver to the Borrower and the Administrative
Agent on or prior to the Closing Date, or in the case of a
Lender that is an assignee or transferee of an interest
under this Agreement pursuant to Section 9.6(d) (unless the
respective Lender was already a Lender hereunder immediately
prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, (i) if the Lender is
a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, two accurate and complete original signed copies of
Internal Revenue Service Form W-8BEN (or successor forms)
certifying such Lender's entitlement to a complete exemption
from United States withholding tax with respect to payments
to be made under this Agreement and under any Note, or (ii)
if the Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, either Internal Revenue Service
Form W-8ECI or Form W-8BEN as set forth in clause (i) above,
or (x) a certificate substantially in the form of Schedule
2.18 (any such certificate, a "2.18 Certificate") and (y)
two accurate and complete original signed copies of Internal
Revenue Service Form W-8ECI or W-8BEN (or successor form)
certifying such Lender's entitlement to an exemption from
United States withholding tax with respect to payments of
interest to be made under this Agreement and under any Note.
In addition, each Lender agrees that it will deliver upon
the Borrower's request updated versions of the foregoing, as
applicable, whenever the previous certification has become
obsolete or inaccurate in any material respect, together
with such other forms as may be required in order to confirm
or establish the entitlement of such Lender to a continued
exemption from or reduction in United States withholding tax
with respect to payments under this Agreement and any Note.
Notwithstanding anything to the contrary contained in
Section 2.18(a), but subject to the immediately succeeding
sentence, (x) the Borrower shall be entitled, to the extent
it is required to do so by law, to deduct or withhold Taxes
imposed by the United States (or any political subdivision
or taxing authority thereof or therein) from interest, fees
or other amounts payable hereunder for the account of any
Lender which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal
income tax purposes to the extent that such Lender has not
provided to the Borrower U.S. Internal Revenue Service Forms
that establish a complete exemption from such deduction or
withholding and (y) the Borrower shall not be obligated
pursuant to Section 2.18(a) hereof to gross-up payments to
be made to a Lender in respect of Taxes imposed by the
United States if (I) such Lender has not provided to the
Borrower the Internal Revenue Service Forms required to be
provided to the Borrower pursuant to this Section 2.18(b) or
(II) in the case of a payment, other than interest, to a
Lender described in clause (ii) above, to the extent that
such Forms do not establish a complete exemption from
withholding of such Taxes. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in
this Section 2.18, the Borrower agrees to pay additional
amounts and to indemnify each Lender in the manner set forth
in Section 2.18(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in
respect of any amounts deducted or withheld by it as
described in the
39
immediately preceding sentence as a result of any changes
after the Closing Date in any applicable law, treaty,
governmental rule, regulation, guideline or order,
or in the interpretation thereof, relating to the deducting
or withholding of Taxes.
(c) Each Lender agrees to use reasonable efforts
(including reasonable efforts to change its Domestic Lending
Office or LIBOR Lending Office, as the case may be) to avoid
or to minimize any amounts which might otherwise be payable
pursuant to this Section; provided, however, that such
efforts shall not cause the imposition on such Lender of any
additional costs or legal or regulatory burdens deemed by
such Lender in its sole discretion to be material.
(d) If the Borrower pays any additional amount
pursuant to this Section 2.18 with respect to a Lender, such
Lender shall use reasonable efforts to obtain a refund of
tax or credit against its tax liabilities on account of such
payment; provided that such Lender shall have no obligation
to use such reasonable efforts if either (i) it is in an
excess foreign tax credit position or (ii) it believes in
good faith, in its sole discretion, that claiming a refund
or credit would cause adverse tax consequences to it. In
the event that such Lender receives such a refund or credit,
such Lender shall pay to the Borrower an amount that such
Lender reasonably determines is equal to the net tax benefit
obtained by such Lender as a result of such payment by the
Borrower. In the event that no refund or credit is obtained
with respect to the Borrower's payments to such Lender
pursuant to this Section 2.18, then such Lender shall upon
request provide a certification that such Lender has not
received a refund or credit for such payments. Nothing
contained in this Section 2.18 shall require a Lender to
disclose or detail the basis of its calculation of the
amount of any tax benefit or any other amount or the basis
of its determination referred to in the proviso to the first
sentence of this Section 2.18 to the Borrower or any other
party.
(e) The agreements in this Section 2.18 shall survive
the termination of this Agreement and the payment of the
Notes and all other amounts payable hereunder.
Section 2.19 Indemnification; Nature of Issuing Lender's
Duties.
(a) In addition to its other obligations under Section
2.4, 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 (i) the issuance of
any Letter of Credit or (ii) 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").
(b) 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. Except with respect to its own willful misconduct
or gross negligence, the
40
Issuing Lender shall not be responsible: (i) for 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; (ii) for 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; (iii) for failure of the
beneficiary of a Letter of Credit to comply fully with
conditions required in order to draw upon a Letter of
Credit; (iv) for 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; (v) for errors in interpretation of technical terms;
(vi) for 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 (vii) for
any consequences arising from causes beyond the control of
the Issuing Lender, including, without limitation, any
Government Acts. None of the above shall affect, impair, or
prevent the vesting of the Issuing Lender's rights or powers
hereunder.
(c) 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 such Issuing Lender under any resulting liability to the
Borrower. It is the intention of the parties that this
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 Government
Authority. 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.
(d) Nothing in this Section 2.19 is intended to limit
the reimbursement obligation of the Borrower contained in
Section 2.4(d) hereof. The obligations of the Borrower
under this Section 2.19 shall survive the termination of
this Agreement. No act or omissions 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 Agreement.
(e) Notwithstanding anything to the contrary contained
in this Section 2.19, the Borrower shall have no obligation
to indemnify any Issuing Lender in respect of any liability
incurred by such Issuing Lender arising out of the gross
negligence or willful misconduct of the Issuing Lender
(including action not taken by an Issuing Lender), as
determined by a court of competent jurisdiction.
41
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to
make the Extensions of Credit herein provided for, each Credit
Party hereby represents and warrants to the Administrative Agent
and to each Lender that:
Section 3.1 Financial Condition.
The balance sheets and the related statements of income and
of cash flows of the Borrower for fiscal year 2003 audited by
Deloitte & Touche LLP are complete and correct and present fairly
the financial condition of the Borrower and its Subsidiaries on a
consolidated basis as of such dates. All such financial
statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as disclosed therein).
Section 3.2 No Change.
Since September 30, 2003 (and after delivery of annual
audited financial statements in accordance with Section 5.1(a),
from the date of the most recently delivered annual audited
financial statements) there has been no development or event
which has had or could reasonably be expected to have a Material
Adverse Effect.
Section 3.3 Corporate Existence; Compliance with Law.
Each of the Borrower and its Subsidiaries (a) is duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, (b) has the requisite
power and authority and the legal right to own and operate all
its material property, to lease the material property it operates
as lessee and to conduct the business in which it is currently
engaged, (c) is duly qualified to conduct business and in good
standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business
requires such qualification except to the extent that the failure
to so qualify or be in good standing could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect and (d)
is in compliance with all Requirements of Law (including without
limitation, environmental laws), except to the extent that the
failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 3.4 Corporate Power; Authorization; Enforceable
Obligations.
Each of the Credit Parties has the full power and authority
and the legal right to make, deliver and perform the Credit
Documents to which it is party and has taken all necessary
corporate action to authorize the execution, delivery and
performance by it of the Credit Documents to which it is party.
No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other
Person is required in connection
42
with the borrowings hereunder or with the execution, delivery or
performance of any Credit Document by any Credit Party (other than
those which have been obtained) or with the validity or
enforceability of any Credit Document against the Credit Parties.
Each Credit Document to which it is a party has been duly executed
and delivered on behalf of each Credit Party. Each Credit Document
to which it is a party constitutes a legal, valid and binding
obligation of each Credit Party enforceable against such Credit
Party in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
Section 3.5 No Legal Bar; No Default.
The execution, delivery and performance of the Credit
Documents, the borrowings thereunder and the use of the proceeds
of the Loans will not violate any material Requirement of Law or
any material Contractual Obligation of the Borrower or its
Subsidiaries (except those as to which waivers or consents have
been obtained), and will not result in, or require, the creation
or imposition of any Lien on any of its or their respective
properties or revenues pursuant to any Requirement of Law or
Contractual Obligation other than any Liens arising under or
contemplated in connection with the Credit Documents. Neither
the Borrower nor any of its Subsidiaries is in default under or
with respect to any of its Contractual Obligations in any respect
which could reasonably be expected to have a Material Adverse
Effect. No Default or Event of Default has occurred and is
continuing.
Section 3.6 No Material Litigation.
Except as set forth in Schedule 3.6, no litigation,
investigation or proceeding (including without limitation, any
environmental proceeding) of or before any arbitrator or
Governmental Authority is pending or, to the best knowledge of
the Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of its or their respective properties
or revenues (a) with respect to the Credit Documents or any Loan
or any of the transactions contemplated hereby, or (b) which, if
adversely determined, could reasonably be expected to have a
Material Adverse Effect.
Section 3.7 Investment Company Act.
Neither the Borrower nor any other Credit Party is not an
"investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of
1940, as amended.
Section 3.8 Margin Regulations.
No part of the proceeds of any Loan hereunder will be used
directly or indirectly for any purpose which violates, or which
would be inconsistent with, the provisions of Regulation T, U or
X of the Board of Governors of the Federal Reserve System as now
and from time to time hereafter in effect. The Borrower and its
Subsidiaries taken as a group do not own "margin
43
stock" except as identified in the financial statements referred to
in Section 3.1 and the aggregate value of all "margin stock" owned
by the Borrower and its Subsidiaries taken as a group does not exceed
25% of the value of their consolidated assets.
Section 3.9 ERISA.
Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or
Section 302 of ERISA) has occurred during the five-year period
prior to the date on which this representation is made or deemed
made with respect to any Plan, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the
Code, except to the extent that any such occurrence or failure to
comply would not reasonably be expected to have a Material
Adverse Effect. No termination of a Single Employer Plan has
occurred resulting in any liability that has remained unfunded,
and no Lien in favor of the PBGC or a Plan has arisen, during
such five-year period which could reasonably be expected to have
a Material Adverse Effect. The present value of all accrued
benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last
annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by an
amount which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Commonly Controlled
Entity is currently subject to any liability for a complete or
partial withdrawal from a Multiemployer Plan which could
reasonably be expected to have a Material Adverse Effect.
Section 3.10 Environmental Matters.
Except as set forth in Schedule 3.10, or matters that could
not be reasonably expected to have a Material Adverse Effect:
(a) The facilities and properties owned, leased or
operated by the Borrower and its Subsidiaries (the
"Properties") do not contain any Materials of Environmental
Concern in amounts or concentrations which (i) constitute a
violation of, or (ii) could give rise to liability under,
any Environmental Law.
(b) The Properties and all operations of the Borrower
and its Subsidiaries at the Properties are in compliance,
and have in the last five years been in compliance, in all
material respects with all applicable Environmental Laws,
and there is no contamination at, under or about the
Properties requiring remediation under Environmental Law or
in violation of any Environmental Law with respect to the
Properties or the business operated by the Borrower or any
of its Subsidiaries (the "Business").
(c) Neither the Borrower nor any Subsidiary of the
Borrower has received any written or actual notice of
violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the
Properties or the Business, nor does the Borrower or any of
its Subsidiaries have knowledge or reason to believe that
any such notice will be received or is being threatened.
44
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation
of, or in a manner or to a location which could reasonably
be expected to give rise to liability under any
Environmental Law, nor have any Materials of Environmental
Concern been generated, treated, stored or disposed of at,
on or under any of the Properties in violation of, or in a
manner that could give rise to liability under, any
applicable Environmental Law.
(e) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the
Borrower, threatened, under any Environmental Law to which
the Borrower or any Subsidiary is or will be named as a
party with respect to the Properties or the Business, nor
are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under
any Environmental Law with respect to the Properties or the
Business.
(f) There has been no unremedied release or threat of
release of Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations of
the Borrower or any of its Subsidiaries in connection with
the Properties or otherwise in connection with the Business,
in violation of or in amounts or in a manner that could
reasonably be expected to give rise to liability under
Environmental Laws.
Section 3.11 Purpose of Loans.
The proceeds of the Loans hereunder shall be used solely by
the Borrower to (a) refinance existing Indebtedness of the
Borrower and to pay certain fees and expenses related thereto,
and (b) provide for working capital and other general corporate
purposes.
Section 3.12 Subsidiaries.
Set forth on Schedule 3.12 is a complete and accurate list
of all Subsidiaries of the Borrower. Information on the attached
Schedule includes state of incorporation and the percentage of
outstanding shares of each class of stock owned by the Borrower.
Section 3.13 Ownership.
Each of the Borrower and its Subsidiaries is the owner of,
and has good and marketable title to, all of its respective
material assets, except as may be permitted pursuant to Section
6.13 hereof, and none of such assets is subject to any Lien other
than Permitted Liens.
Section 3.14 Indebtedness.
Except as otherwise permitted under Section 6.1, the
Borrower and its Subsidiaries have no Indebtedness.
45
Section 3.15 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.
Neither the Borrower nor any of its Subsidiaries is aware as of
the Closing Date of any proposed tax assessments against it or
any of its Subsidiaries which could reasonably be expected to
have a Material Adverse Effect.
Section 3.16 Investments.
All Investments of each of the Borrower and its Subsidiaries
are Permitted Investments.
Section 3.17 No Burdensome Restrictions.
None of the Borrower or any of its Subsidiaries is 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, could reasonably be expected to have a Material
Adverse Effect.
Section 3.18 Brokers' Fees.
None of the Borrower or any of its Subsidiaries has 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 other
than the closing and other fees payable pursuant to this Credit
Agreement.
Section 3.19 Labor Matters.
There are no collective bargaining agreements or
Multiemployer Plans covering the employees of the Borrower or any
of its Subsidiaries as of the Closing Date, other than as set
forth in Schedule 3.19 hereto. Neither the Borrower nor any of
its Subsidiaries (a) has suffered any strikes, walkouts, work
stoppages or other material labor difficulty within the last five
years, other than as set forth in Schedule 3.19 hereto or (b) has
knowledge of any pending strike, walkout or work stoppage.
Section 3.20 Accuracy and Completeness of Information.
All factual information heretofore, contemporaneously or
hereafter furnished by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or any Lender for
purposes of or in connection with this Agreement or any other
Credit Document, or any transaction contemplated hereby or
thereby, is or will be true and accurate in all material respects
46
and not incomplete by omitting to state any material fact
necessary to make such information not misleading. There is no
fact now known to the Borrower or any of its Subsidiaries which
has, or could reasonably be expected to have, a Material Adverse
Effect which fact has not been set forth herein, in the financial
statements of the Borrower and its Subsidiaries furnished to the
Administrative Agent and/or the Lenders, or in any certificate,
opinion or other written statement made or furnished by the
Borrower to the Administrative Agent and/or the Lenders.
Section 3.21 Anti-Terrorism Laws.
Neither the making of the Loans hereunder nor the Borrower's
use of the proceeds thereof will violate the Patriot Act, the
Trading with the Enemy Act, as amended, or any of the foreign
assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any
enabling legislation or executive order relating thereto, or is
in violation of any Federal statute or Presidential Executive
Order, including without limitation Executive Order 13224 66 Fed.
Reg. 49079 (September 25, 2001) (Blocking Property and
Prohibiting Transactions with Persons who Commit, Threaten to
Commit or Support Terrorism) (collectively, "Anti-Terrorism
Laws").
Section 3.22 Solvency.
The fair saleable value of each Credit Party's assets,
measured on a going concern basis, exceeds all probable
liabilities, including those to be incurred pursuant to this
Agreement. None of the Credit Parties (a) has unreasonably small
capital in relation to the business in which it is or proposes to
be engaged or (b) has incurred, or believes that it will incur
after giving effect to the transactions contemplated by this
Agreement, debts beyond its ability to pay such debts as they
become due.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions to Closing Date and Initial
Revolving Loans.
This Agreement shall become effective upon, and the
obligation of each Lender to make the initial Revolving Loans on
the Closing Date is subject to, the satisfaction of the following
conditions precedent:
(a) Execution of Agreement. The Administrative Agent
shall have received (i) counterparts of this Agreement,
executed by a duly authorized officer of each party hereto,
(ii) for the account of each Lender, Revolving Notes and
(iii) for the account of the Swingline Lender, a Swingline
Note.
47
(b) Authority Documents. The Administrative Agent
shall have received the following:
(i) Articles of Incorporation. Copies of
the articles of incorporation or other charter
documents, as applicable, of each Credit Party
certified to be true and complete as of a recent date
by the appropriate governmental authority of the state
of its incorporation.
(ii) Resolutions. Copies of resolutions of
the board of the executive committee of each Credit
Party approving and adopting the Credit Documents, the
transactions contemplated therein and authorizing
execution and delivery thereof, certified by an officer
of such Credit Party as of the Closing Date to be true
and correct and in force and effect as of such date.
(iii) Bylaws. A copy of the bylaws of
each Credit Party certified by an officer of such
Credit Party as of the Closing Date to be true and
correct and in force and effect as of such date.
(iv) Good Standing. Copies of (A)
certificates of good standing, existence or its
equivalent with respect to each Credit Party certified
as of a recent date by the appropriate governmental
authorities of the state of incorporation and each
other state in which the failure to so qualify and be
in good standing could reasonably be expected to have a
Material Adverse Effect on the business or operations
of the Borrower and its Subsidiaries in such state and
(B) 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 each Credit Party certified by a secretary or
assistant secretary to be true and correct as of the
Closing Date.
(c) Legal Opinions of Counsel. The Administrative
Agent shall have received an opinion of McGuireWoods LLP,
dated the Closing Date and addressed to the Administrative
Agent and the Lenders, in form and substance acceptable to
the Administrative Agent.
(d) Fees and Expenses. The Administrative Agent shall
have received all fees and expenses owed by the Borrower to
the Lenders and the Administrative Agent.
(e) Litigation. There shall not exist any pending
litigation or investigation affecting or relating to the
Borrower or any of its Subsidiaries, this Agreement and the
other Credit Documents that in the reasonable judgment of
the Administrative Agent could materially adversely affect
the Borrower or any of its Subsidiaries, this Agreement and
the other Credit Documents, that has not been settled,
dismissed, vacated, discharged or terminated prior to the
Closing Date.
48
(f) Corporate Structure. The corporate capital and
ownership structure of the Borrower and its Subsidiaries
shall be as described in Schedule 3.12.
(g) Government Consent. The Administrative Agent
shall have received evidence that all governmental,
shareholder and material third party consents and approvals
necessary in connection with the financings and other
transactions contemplated hereby have been obtained and all
applicable waiting periods have expired without any action
being taken by any authority that could restrain, prevent or
impose any material adverse conditions on such transactions
or that could seek or threaten any of the foregoing.
(h) Compliance with Laws. The financings and other
transactions contemplated hereby shall be in compliance with
all applicable laws and regulations (including all
applicable securities and banking laws, rules and
regulations).
(i) Bankruptcy. There shall be no bankruptcy or
insolvency proceedings with respect to the Borrower or any
of its Subsidiaries.
(j) Financial Statements. The Administrative Agent
shall have received (i) copies of the financial statements
referred to in Section 3.1 hereof and (ii) unaudited interim
consolidated financial statements of the Borrower for each
fiscal quarterly period ended after September 30, 2003.
(k) Termination of Existing Indebtedness. All
existing Indebtedness for borrowed money of the Borrower and
its Subsidiaries (other than the Indebtedness listed on
Schedule 6.1(b)) shall have been repaid in full and
terminated.
(l) Account Designation Letter. The Administrative
Agent shall have received the executed Account Designation
Letter in the form of Schedule 1.1(a) hereto.
(m) No Material Adverse Change. Since March 31, 2004
there has been no material adverse change in the business,
properties, prospects, operations, or condition (financial
or otherwise) of the Borrower and its Subsidiaries, taken as
a whole.
(n) Additional Matters. All other documents and legal
matters in connection with the transactions contemplated by
this Agreement shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel.
Section 4.2 Conditions to All Extensions of Credit.
The obligation of each Lender to make any Extension of
Credit hereunder is subject to the satisfaction of the following
conditions precedent on the date of making such Extension of
Credit:
49
(a) Representations and Warranties. The
representations and warranties made by the Credit Parties
herein or which are contained in any certificate furnished
at any time under or in connection herewith shall be true
and correct in all material respects on and as of the date
of such Extension of Credit as if made on and as of such
date.
(b) No Default or Event of Default. No Default or
Event of Default shall have occurred and be continuing on
such date or after giving effect to the Extension of Credit
to be made on such date unless such Default or Event of
Default shall have been waived in accordance with this
Agreement.
(c) Compliance with Commitments. Immediately after
giving effect to the making of any such Extension of Credit
(and the application of the proceeds thereof), (i) the sum
of the aggregate principal amount of outstanding Revolving
Loans plus Swingline Loans plus LOC Obligations shall not
exceed the Revolving Committed Amount, (ii) the LOC
Obligations shall not exceed the LOC Committed Amount and
(iii) the Swingline Loans shall not exceed the Swingline
Commitment.
(d) Additional Conditions to Revolving Loans. If such
Loan is made pursuant to Section 2.1, all conditions set
forth in such Section shall have been satisfied.
(e) Additional Conditions to Swingline Loan. If such
Loan is made pursuant to Section 2.3, all conditions set
forth in such Section shall have been satisfied.
(f) Additional Conditions to Letters of Credit. If
such Extension of Credit is made pursuant to Section 2.4,
all conditions set fort in such Section shall have been
satisfied.
Each request for an Extension of Credit and each acceptance
by the Borrower of any such Extension of Credit shall be deemed
to constitute a representation and warranty by the Borrower as of
the date of such Extension of Credit that the applicable
conditions in paragraphs (a) through (f) of this Section have
been satisfied.
ARTICLE V
AFFIRMATIVE COVENANTS
The Credit Parties hereby covenant and agree that on the
Closing Date, and thereafter for so long as this Agreement is in
effect and until the Commitments have terminated, no Note remains
outstanding and unpaid and the Credit Party Obligations, together
with interest, Commitment Fees and all other amounts owing to the
Administrative Agent or any Lender hereunder, are paid in full,
the Borrower shall, and shall cause each of its Subsidiaries
(other than in the case of Sections 5.1, 5.2 or 5.7 hereof), to:
50
Section 5.1 Financial Statements.
Furnish to the Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as
available, but in any event within ninety (90) days after
the end of each fiscal year of the Borrower, (i) a copy of
the consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such fiscal year
and the related consolidated statements of income and
retained earnings and of cash flows of the Borrower and its
consolidated Subsidiaries for such year, audited by Deloitte
& Touche LLP, or other independent certified public
accountants selected by Borrower and satisfactory to the
Administrative Agent, setting forth in each case in
comparative form the figures for the previous year, reported
on without a "going concern" or like qualification,
assumption or exception, or a qualification, assumption or
exception indicating that the scope of the audit was
inadequate to permit such independent certified public
accountants to certify such financial statements without
such qualification, and (ii) a copy of the consolidating
balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such fiscal year and the
related consolidating statements of income and retained
earnings and of cash flows of the Borrower and its
consolidated Subsidiaries for such year, setting forth in
each case in comparative form the figures for the previous
year;
(b) Quarterly Financial Statements. As soon as
available and in any event within sixty (60) days after the
end of each of the first three fiscal quarters of each
fiscal year of the Borrower, a company-prepared consolidated
and consolidating balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such period and
related company-prepared consolidated and consolidating
statements of income and retained earnings and of cash flows
for the Borrower and its consolidated Subsidiaries for such
quarterly period and for the portion of the fiscal year
ending with such period, in each case setting forth in
comparative form consolidated figures for the corresponding
period or periods of the preceding fiscal year (subject to
normal recurring year-end audit adjustments); and
(c) Annual Budget Plan. As soon as available, but in
any event within sixty (60) days after the end of each
fiscal year, a copy of the consolidated annual budget and
cash flow projections or plan of the Borrower and its
consolidated Subsidiaries for the next fiscal year prepared
on a quarterly and monthly basis, in form and detail
reasonably acceptable to the Administrative Agent and the
Required Lenders, together with a summary of the material
assumptions made in the preparation of such annual budget or
plan;
all such financial statements to be complete and correct in all
material respects and to be prepared in reasonable detail and
(other than the items required by clause (c) above) in accordance
with GAAP applied consistently throughout the periods reflected
therein and further accompanied by a description of, and an
estimation of the effect on the financial statements on
51
account of, a change, if any, in the application of accounting principles
as provided in Section 1.3.
Section 5.2 Certificates; Other Information.
Furnish to the Administrative Agent and each of the Lenders:
(a) concurrently with the delivery of the financial
statements referred to in Section 5.1(a) above, a
certificate of the independent certified public accountants
reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default, except as
specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in Sections 5.1(a) and 5.1(b) above,
a certificate of a Responsible Officer stating that, to the
best of such Responsible Officer's knowledge, the Credit
Parties, collectively, have during such period observed or
performed in all material respects all of their covenants
and other agreements, and satisfied in all material respects
every condition, contained in this Agreement to be observed,
performed or satisfied by them, and that such Responsible
Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate and such
certificate shall include the calculations in reasonable
detail required to indicate compliance with Section 5.8 as
of the last day of such period;
(c) within thirty (30) days after the same are sent,
copies of all reports (other than those otherwise provided
pursuant to Section 5.1 and those which are of a promotional
nature) and other financial information which the Borrower
sends to its stockholders, and within thirty days after the
same are filed, copies of all financial statements and non-
confidential reports which the Borrower may make to, or file
with the Securities and Exchange Commission or any successor
or analogous Governmental Authority;
(d) promptly upon receipt thereof, a copy of any other
report or "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 such Person; and
(e) promptly, such additional financial and other
information as the Administrative Agent, on behalf of any
Lender, may from time to time reasonably request.
Section 5.3 Payment of Obligations.
Pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, in accordance
with industry practice (subject, where applicable, to specified
grace periods) all its material obligations of whatever nature
and any additional costs that are imposed as a result of any
failure to so pay, discharge or otherwise satisfy such
52
obligations, except when the amount or validity of such
obligations and costs is currently being contested in good faith
by appropriate proceedings and reserves, if applicable, in
conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may
be.
Section 5.4 Conduct of Business and Maintenance of
Existence.
Continue to engage in business of the same general type as
now conducted by it on the Closing Date and any reasonable
extensions thereof and preserve, renew and keep in full force and
effect its corporate existence and cooperative status and take
all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its
business; comply with all Contractual Obligations and
Requirements of Law applicable to it except to the extent that
failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 5.5 Maintenance of Property; Insurance.
(a) Keep all material property useful and necessary in
its business in good working order and condition (ordinary
wear and tear and obsolescence excepted);
(b) Maintain with financially sound and reputable
insurance companies insurance on all its material property
in at least such amounts and against at least such risks as
are usually insured against in the same general area by
companies engaged in the same or a similar business
(including, without limitation, hazard and business
interruption coverage); and furnish to the Administrative
Agent, upon written request, full information as to the
insurance carried; provided, however, that the Borrower and
its Subsidiaries may maintain self insurance plans to the
extent companies of similar size and in similar businesses
do so or in accordance with Borrower's present practice.
Section 5.6 Inspection of Property; Books and Records;
Discussions.
Keep proper books of records and account in which full, true
and correct entries in conformity with GAAP and all Requirements
of Law shall be made of all dealings and transactions in relation
to its businesses and activities; and permit, during regular
business hours and upon reasonable notice by the Administrative
Agent or if a default exists hereunder, any Lender, the
Administrative Agent or any Lender to visit and inspect any of
its properties and examine and make abstracts from any of its
books and records (other than materials protected by the attorney-
client privilege and materials which the Borrower may not
disclose without violation of a confidentiality obligation
binding upon it) at any reasonable time and to discuss the
business, operations, properties and financial and other
condition of the Borrower and its Subsidiaries with officers and
employees of the Borrower and its Subsidiaries and with its
independent certified public accountants.
53
Section 5.7 Notices.
Give notice in writing to the Administrative Agent (which
shall promptly transmit such notice to each Lender) of:
(a) within two (2) Business Days after the Borrower
knows or has reason to know thereof, the occurrence of any
Default or Event of Default;
(b) promptly, any default or event of default under
any Contractual Obligation of the Borrower or any of its
Subsidiaries which could reasonably be expected to have a
Material Adverse Effect;
(c) promptly, any litigation, or any investigation or
proceeding known to the Borrower, affecting the Borrower or
any of its Subsidiaries which, if adversely determined,
could reasonably be expected to have a Material Adverse
Effect;
(d) as soon as possible and in any event within thirty
(30) days after the Borrower knows or has reason to know
thereof: (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Plan, a failure to make
any required contribution to a Plan, the creation of any
Lien in favor of the PBGC (other than a Permitted Lien) or a
Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any
other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to
the withdrawal from, or the terminating, Reorganization or
Insolvency of, any Plan; and
(e) promptly, any other development or event which
could reasonably be expected to have a Material Adverse
Effect.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the
Borrower proposes to take with respect thereto. In the case of
any notice of a Default or Event of Default, the Borrower shall
specify that such notice is a Default or Event of Default notice
on the face thereof.
Section 5.8 Financial Covenants.
Commencing on the day immediately following the Closing
Date, the Borrower shall comply with the following financial
covenants:
(a) Consolidated Funded Debt to Consolidated Total
Capitalization Ratio. The Consolidated Funded Debt to
Consolidated Total Capitalization Ratio, as of the last day
of each fiscal quarter of the Borrower and its Subsidiaries,
shall be less than or equal to 0.50 to 1.0.
54
(b) Interest Coverage Ratio. The Interest Coverage
Ratio, as of the last day of each fiscal quarter of the
Borrower, shall be greater than or equal to 2.5 to 1.0.
Section 5.9 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
(including without limitation, environmental laws), applicable to
it and its Property if noncompliance with any such law, rule,
regulation, order or restriction could reasonably be expected to
have a Material Adverse Effect.
Section 5.10 Environmental Laws.
(a) Comply in all material respects with, and ensure
compliance in all material respects by all tenants and
subtenants, if any, with, all applicable Environmental Laws
and obtain and comply in all material respects with and
maintain, and ensure that all tenants and subtenants obtain
and comply in all material respects with and maintain, any
and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws except, in
each case, to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other
actions required under Environmental Laws except to the
extent the failure to do so could not reasonably be expected
to result in a Material Adverse Effect and promptly comply
in all material respects with all lawful orders and
directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings and
the pendency of such proceedings could not reasonably be
expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the
Administrative Agent and the Lenders, and their respective
employees, agents, officers and directors, from and against
any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising
out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law
applicable to the operations of the Borrower, any of its
Subsidiaries or the Properties, or any orders, requirements
or demands of Governmental Authorities related thereto,
including, without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except
to the extent that any of the foregoing arise out of the
gross negligence, bad faith or willful misconduct of any
indemnified person. The agreements in this paragraph shall
survive repayment of the Notes and all other amounts payable
hereunder.
55
Section 5.11 [Intentionally Omitted].
Section 5.12 Additional Guarantors.
(a) The Borrower will cause each of its Material Domestic
Subsidiaries, whether newly formed, after acquired or otherwise
existing, to promptly become a Guarantor hereunder by way of
execution of a Joinder Agreement.
(b) At such time as the value of the total assets (as
determined in accordance with GAAP) of all Domestic Subsidiaries
(other than the Material Domestic Subsidiaries which are
Guarantors hereunder) exceeds 10% of Consolidated Total Assets,
the Borrower shall, upon the request of the Administrative Agent,
cause one or more Domestic Subsidiaries, as requested by the
Administrative Agent, to promptly become a Guarantor hereunder by
way of execution of a Joinder Agreement.
ARTICLE VI
NEGATIVE COVENANTS
The Credit Parties hereby covenant and agree that on the
Closing Date, and thereafter for so long as this Credit Agreement
is in effect and until the Commitments have terminated, no Note
remains outstanding and unpaid and the Credit Party Obligations,
together with interest, Commitment Fees and all other amounts
owing to the Administrative Agent or any Lender hereunder, are
paid in full, the Borrower will not, nor will it permit any of
its Subsidiaries to, either directly or indirectly:
Section 6.1 Indebtedness.
Incur, create, assume or permit to exist, without
duplication, any Indebtedness or any liability on account of
borrowed money, represented by any notes, bonds, debentures or
similar obligations, or on account of the deferred purchase price
of any property, or any other deposits, advance or progress
payments under contracts, except:
(a) Indebtedness arising or existing under this
Credit Agreement or the other Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries
existing as of the Closing Date (and set forth in Schedule
6.1(b) hereto) and renewals, refinancings and extensions
thereof in a principal amount not in excess of that
outstanding as of the date of such renewal, refinancing or
extension;
(c) Indebtedness and obligations owing under Hedging
Agreements entered into with a Hedging Agreement Provider
relating to the Loans hereunder and other
56
Hedging Agreements entered into in order to manage existing
or anticipated interest rate, exchange rate or commodity price
risks and not for speculative purposes;
(d) Indebtedness of the Borrower and its Subsidiaries
incurred after the Closing Date consisting of Capital Leases
or Indebtedness incurred to provide all or a portion of the
purchase price or cost of construction of an asset provided
that (i) such Indebtedness when incurred shall not exceed
the purchase price or cost of construction of such asset and
(ii) no such Indebtedness shall be refinanced for a
principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing;
(e) Indebtedness secured by Liens to the extent
permitted under subsections (l) or (n) of the definition of
"Permitted Liens";
(f) unsecured intercompany Indebtedness among the
Borrower and its Subsidiaries; provided that any such
Indebtedness shall be fully subordinated to the Credit Party
Obligations hereunder on terms reasonably satisfactory to
the Agent; and
(g) other unsecured Indebtedness of the Borrower and
its Subsidiaries, provided, that upon giving effect to the
incurrence of such Indebtedness on a Pro Forma Basis, the
Borrower will be in compliance with all of the financial
covenants set forth in Section 5.8.
Section 6.2 Liens.
Contract, create, incur, assume or permit to exist any Lien
with respect to any of their respective property or assets of any
kind (whether real or personal, tangible or intangible), whether
now owned or hereafter acquired, except for Permitted Liens.
Section 6.3 Nature of Business.
Alter the character of their business in any material
respect from that conducted as of the Closing Date or engage in
any business other than the business conducted as of the Closing
Date and any reasonable extensions thereof.
Section 6.4 Consolidation, Merger, Sale or Purchase of
Assets, etc.
(a) Dissolve, liquidate or wind up their affairs or
enter into any transaction of merger or consolidation;
provided, however that (i) the Borrower may merge or
consolidate with any Subsidiary so long as the Borrower
shall be the continuing or surviving corporation, (ii) any
Subsidiary of the Borrower may be merged with or into any
other Subsidiary of the Borrower (provided that if only one
of such Subsidiaries is a Guarantor, the Guarantor shall be
the continuing or surviving corporation) and (iii) the
Borrower or any Subsidiary of the Borrower may merge with
any other Person in connection with a Permitted Acquisition
if the Borrower or such Subsidiary shall be the continuing
or surviving corporation.
57
(b) Make any Asset Dispositions (including, without
limitation, any Sale Leaseback Transaction) other than (i)
the sale of inventory in the ordinary course of business for
fair consideration, (ii) the sale or disposition of
machinery and equipment no longer used or useful in the
conduct of Borrower's or any such Subsidiary's business,
(iii) the termination of any Hedging Agreement, or (iv) such
other Asset Dispositions, provided that (A) the
consideration for such assets disposed of represents the
fair market value of such assets at the time of such Asset
Disposition and, (B) if the cumulative net book value of any
Asset Disposition is less than 10% of Consolidated Total
Assets, upon giving effect to such Asset Disposition on a
Pro Forma Basis, the Borrower will be in compliance with all
of the financial covenants set forth in Section 5.8 and (C)
if the cumulative net book value of any Asset Disposition
exceeds 10% of Consolidated Total Assets, the Borrower shall
have delivered to the Agent a Pro Forma Compliance
Certificate demonstrating that, upon giving effect to such
Asset Disposition, the Borrower will be in compliance with
all of the financial covenants set forth in Section 5.8.
(c) Acquire all or substantially all of the assets or
business of any Person except in connection with a Permitted
Acquisition.
Section 6.5 Advances, Investments and Loans.
Lend money or extend credit or make advances to any Person,
or purchase or acquire any stock, obligations or securities of,
or any other interest in, or make any capital contribution to, or
otherwise make an investment in, any Person except for
investments in Domestic Subsidiaries which are Guarantors,
Permitted Investments and Permitted Acquisitions.
Section 6.6 Issuance of Equity Securities.
Issue, sell, transfer, pledge or otherwise dispose of any
shares of capital stock or other equity or ownership interests
("Equity Interests") in any Subsidiary, except (a) in connection
with the sale of all of the capital stock of a Subsidiary
pursuant to a transaction permitted by Section 6.4(b), (b) the
issuance, sale or transfer of Equity Interests by a Subsidiary
(the "Issuing Subsidiary") to the Borrower or a Subsidiary of the
Borrower that owns such Issuing Subsidiary and (c) as needed to
qualify directors under applicable law.
Section 6.7 Transactions with Affiliates; Modification of
Documentation..
(a) Except as permitted in subsection (e) of the
definition of Permitted Investments, enter into or permit to
exist 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
(i) customary fees and expenses paid to directors and (ii)
where such transactions are 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.
58
(b) Permit the Borrower or any Subsidiary to, if any
Default or Event of Default has occurred and is continuing
or would be directly or indirectly caused as a result
thereof, after the issuance thereof, amend or modify (or
permit the amendment or modification of) any of the terms of
any Indebtedness if such amendment or modification would add
or change any terms in a manner adverse to the issuer of
such Indebtedness, or shorten the final maturity or average
life to maturity or require any payment to be made sooner
than originally scheduled or increase the interest rate
applicable thereto or change any subordination provision
thereof.
Section 6.8 Ownership of Subsidiaries; Restrictions.
The Borrower will not sell, transfer, pledge or otherwise
dispose of any Capital Stock or other equity interests in any of
its Subsidiaries, nor will it permit any of its Subsidiaries to
issue, sell, transfer, pledge or otherwise dispose of any of
their Capital Stock or other equity interests, except in a
transaction permitted by Section 6.4 or 6.6.
Section 6.9 Fiscal Year; Organizational Documents.
Change its fiscal year or amend, modify or change its
articles of incorporation in any manner adverse to the Lenders
(or corporate charter or other similar organizational document)
or bylaws (or other similar document) without the prior written
consent of the Required Lenders.
Section 6.10 Limitation on Restricted Actions.
Create or permit to exist any restriction of any kind on the
ability of any Subsidiary to (a) pay dividends or make any other
distributions to the Borrower or any of its Subsidiaries, (b) pay
Indebtedness owed to the Borrower or any of its Subsidiaries, (c)
make loans or advances to the Borrower or any of its
Subsidiaries, (d) transfer any of its properties or assets to the
Borrower or any of its Subsidiaries or (e) act as a Guarantor and
pledge its assets pursuant to the Credit Documents or any
renewals, refinancings, exchanges, refundings or extension
thereof.
Section 6.11 Restricted Payments.
The Borrower will not, nor will it permit any Subsidiary to,
directly or indirectly, declare, order, make or set apart any sum
for or pay any Restricted Payment, except (a) to make dividends
payable solely in the same class of Capital Stock of such Person,
(b) to make dividends or other distributions payable to the
Borrower (directly or indirectly through Subsidiaries, (c) as
permitted by Section 6.12 and (d) other distributions in respect
of the Capital Stock of such Person or the redemption,
retirement, purchase or other acquisition of the Capital Stock of
such Person (or any warrant, option or other rights with respect
to any shares of Capital Stock (now or hereafter outstanding) of
such Person) if no Default has occurred and is continuing or
would result from such action.
59
Section 6.12 Prepayments of Indebtedness, etc.
The Borrower will not, nor will it permit any Subsidiary to,
after the issuance thereof, amend or modify (or permit the
amendment or modification of) any of the terms of any
Indebtedness (other than any Hedging Agreement) if such amendment
or modification would add or change any terms in a manner adverse
to the issuer of such Indebtedness, or shorten the final maturity
or average life to maturity or require any payment to be made
sooner than originally scheduled or increase the interest rate
applicable thereto or change any subordination provision thereof.
Section 6.13 [Intentionally Omitted].
Section 6.14 [Intentionally Omitted].
Section 6.15 No Further Negative Pledges.
The Borrower will not, nor will it permit any Subsidiary to,
enter into, assume or become subject to any agreement prohibiting
or otherwise restricting the creation or assumption of any Lien
upon its properties or assets, whether now owned or hereafter
acquired, or requiring the grant of any security for such
obligation if security is given for some other obligation, except
(a) pursuant to this Agreement and the other Credit Documents,
(b) pursuant to any document or instrument governing Indebtedness
incurred pursuant to Section 6.1(d), provided that any such
restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith and (c) in
connection with any Permitted Lien or any document or instrument
governing any Permitted Lien, provided that any such restriction
contained therein relates only to the asset or assets subject to
such Permitted Lien.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.1 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) The Borrower shall fail to pay any principal on
any Note when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to reimburse the Issuing
Lender for any LOC Obligations when due in accordance with
the terms hereof; or the Borrower shall fail to pay any
interest on any Note or any fee or other amount payable
hereunder when due in accordance with the terms thereof or
hereof and such failure shall continue unremedied for three
(3) Business Days (or any Guarantor shall fail to pay on the
Guaranty in respect of any of the foregoing or in respect of
any other Guaranty Obligations thereunder); or
60
(b) Any representation or warranty made or deemed made
herein or in any of the other Credit Documents or which is
contained in any certificate, document or financial or other
statement furnished at any time under or in connection with
this Agreement shall prove to have been incorrect, false or
misleading in any material respect on or as of the date made
or deemed made; or
(c) (i) Any Credit Party shall fail to perform, comply
with or observe any term, covenant or agreement applicable
to it contained in Section 5.7(a), Section 5.8 or Article VI
hereof; or (ii) any Credit Party shall fail to comply with
any other covenant, contained in this Credit Agreement or
the other Credit Documents or any other agreement, document
or instrument among the Borrower, the Administrative Agent
and the Lenders or executed by a Credit Party in favor of
the Administrative Agent or the Lenders (other than as
described in Sections 7.1(a) or 7.1(c)(i) above), and in the
event such breach or failure to comply is capable of cure,
is not cured within thirty (30) days of its occurrence; or
(d) The Borrower or any of its Subsidiaries shall (i)
default in any payment of principal of or interest on any
Indebtedness (other than the Credit Party Obligations) in a
principal amount outstanding of at least $1,000,000 in the
aggregate for the Borrower and any of its Subsidiaries
beyond the period of grace (not to exceed 30 days), if any,
provided in the instrument or agreement under which such
Indebtedness was created; or (ii) default in the observance
or performance of any other agreement or condition relating
to any Indebtedness (other than the Credit Party
Obligations) in a principal amount outstanding of at least
$1,000,000 in the aggregate for the Borrower and its
Subsidiaries or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default
or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on
behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its
stated maturity; or
(e) (i) The Borrower or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it
or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or
the Borrower or any Subsidiary shall make a general
assignment for the benefit of its creditors; or (ii) there
shall be commenced against the Borrower or any Subsidiary
any case, proceeding or other action of a nature referred to
in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or
(B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced
62
against the Borrower or any Subsidiary any case, proceeding
or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of
an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) the Borrower
or any Subsidiary shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) the Borrower or any Subsidiary shall generally
not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(f) One or more judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving in
the aggregate a liability (to the extent not paid when due
or covered by insurance) of $1,000,000 or more and all such
judgments or decrees shall not have been paid and satisfied,
vacated, discharged, stayed or bonded pending appeal within
30 days from the entry thereof; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section
4975 of the Code) involving any Plan, (ii) any "accumulated
funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan
or any Lien in favor of the PBGC or a Plan (other than a
Permitted Lien) shall arise on the assets of the Borrower or
any Commonly Controlled Entity, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence
to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single
Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, any Multiemployer Plan or
(vi) any other similar event or condition shall occur or
exist with respect to a Plan; and in each case in clauses
(i) through (vi) above, such event or condition, together
with all other such events or conditions, if any, could have
a Material Adverse Effect; or
(h) There shall occur a Change of Control; or
(i) The Guaranty or any provision thereof shall cease
to be in full force and effect or any Guarantor or any
Person acting by or on behalf of any Guarantor shall deny or
disaffirm any Guarantor's obligations under the Guaranty, or
any other Credit Document shall fail to be in full force and
effect or to give the Administrative Agent and/or the
Lenders the security interests, liens, rights, powers and
privileges purported to be created thereby (except as such
documents may be terminated or no longer in force and effect
in accordance with the terms thereof, other than those
indemnities and provisions which by their terms shall
survive); or
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(j) The occurrence of a default or event of default
(which shall continue beyond the expiration of any
applicable grace periods) under, or the occurrence of any
event which results in or would permit the termination of,
any Hedging Agreement between the Borrower or one of its
Subsidiaries and any Hedging Agreement Provider.
Section 7.2 Acceleration; Remedies.
Upon the occurrence of an Event of Default, then, and in any
such event, (a) if such event is an Event of Default specified in
Section 7.1(f) above, automatically the Commitments shall
immediately terminate and the Loans (with accrued interest
thereon), and all other amounts under the Credit Documents
(including without limitation the maximum amount of all
contingent liabilities under Letters of Credit) shall immediately
become due and payable, and (b) if such event is any other Event
of Default, either or both of the following actions may be taken:
(i) with the written consent of the Required Lenders, the
Administrative Agent may, or upon the written request of the
Required Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii)
with the written consent of the Required Lenders, the
Administrative Agent may, or upon the written request of the
Required Lenders, the Administrative Agent shall, by notice of
default to the Borrower, declare the Loans (with accrued interest
thereon) and all other amounts owing under this Agreement (it
being acknowledged that this amount shall not be deemed to
include amounts owing under or in connection with any Hedging
Agreement between Borrower or any of its Subsidiaries and any
Hedging Agreement Provider) and the Notes to be due and payable
forthwith and direct the Borrower to pay to the Administrative
Agent cash collateral as security for the LOC Obligations for
subsequent drawings under then outstanding Letters of Credit in
an amount equal to the maximum amount which may be drawn under
Letters of Credit then outstanding, whereupon the same shall
immediately become due and payable.
ARTICLE VIII
THE AGENT
Section 8.1 Appointment.
Each Lender hereby irrevocably designates and appoints
Wachovia Bank, National Association as the Administrative Agent
of such Lender under this Agreement, and each such Lender
irrevocably authorizes Wachovia Bank, National Association, as
the Administrative Agent for such Lender, to take such action on
its behalf under the provisions of this Agreement and to exercise
such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement, together
with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied
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covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist
against the Administrative Agent.
Section 8.2 Delegation of Duties.
The Administrative Agent may execute any of its duties under
this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care. Without
limiting the foregoing, the Administrative Agent may appoint one
of its affiliates as its agent to perform the functions of the
Administrative Agent hereunder relating to the advancing of funds
to the Borrower and distribution of funds to the Lenders and to
perform such other related functions of the Administrative Agent
hereunder as are reasonably incidental to such functions.
Section 8.3 Exculpatory Provisions.
Neither the Administrative Agent nor any of its 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 with this
Agreement (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 or any officer thereof contained
in this Agreement or in any certificate, report, statement or
other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement
or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any of the Credit Documents or
for any failure of the Borrower to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be
under any obligation to any Lender to ascertain or to inquire as
to the observance or performance by the Borrower of any of the
agreements contained in, or conditions of, this Agreement, or to
inspect the properties, books or records of the Borrower.
Section 8.4 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it
in good faith 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 Administrative Agent. The Administrative
Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless (a) a written notice of
assignment, negotiation or transfer thereof shall have been filed
with the Administrative Agent and (b) the Administrative Agent
shall have received the written agreement of such assignee to be
bound hereby as fully and to the same extent as if such assignee
were an original Lender party hereto, in each case in form
satisfactory to the Administrative Agent. The Administrative
Agent shall be fully justified in failing or refusing to take any
action under this Agreement unless it shall first receive such
advice
65
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 Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under any of the Credit Documents
in accordance with a request of the Required Lenders or all of the
Lenders, as may be required under this Agreement, and such request
and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Notes.
Section 8.5 Notice of Default.
The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received
notice from a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, 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; provided, however, that unless and until
the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to
such Default or Event of Default as it shall deem advisable in
the best interests of the Lenders except to the extent that this
Credit Agreement expressly requires that such action be taken, or
not taken, only with the consent or upon the authorization of the
Required Lenders, or all of the Lenders, as the case may be.
Section 8.6 Non-Reliance on Administrative Agent and
Other Lenders.
Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates has made any
representation or warranty to it and that no act by the
Administrative Agent hereinafter taken, including any review of
the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent that
it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of
the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement,
and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and
other condition and creditworthiness of the Borrower. Except for
notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent hereunder,
the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other
information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness
65
of the Borrower which may come into the possession of the
Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
Section 8.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent in
its capacity hereunder (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to
do so), ratably according to their respective Commitment
Percentages in effect on the date on which indemnification is
sought under this Section, from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation,
at any time following the payment of the Notes) be imposed on,
incurred by or asserted against the Administrative Agent in any
way relating to or arising out of any Credit Document or any
documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection
with any of the foregoing; provided, however, that no Lender
shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent
resulting from the Agent's gross negligence or willful
misconduct, as determined by a court of competent jurisdiction.
The agreements in this Section 8.7 shall survive the termination
of this Agreement and payment of the Notes and all other amounts
payable hereunder.
Section 8.8 Administrative Agent in Its Individual
Capacity.
The Administrative Agent and its affiliates may make loans
to, accept deposits from and generally engage in any kind of
business with the Borrower as though the Administrative Agent
were not the Administrative Agent hereunder. With respect to its
Loans made or renewed by it and any Note issued to it, the
Administrative Agent shall have the same rights and powers under
this Agreement as any Lender and may exercise the same as though
it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its
individual capacity.
Section 8.9 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent
upon 30 days' prior notice to the Borrower and the Lenders. If
the Administrative Agent shall resign as Administrative Agent
under this Agreement and the Notes, then the Required Lenders
shall appoint from among the Lenders a successor agent for the
Lenders, which successor agent shall be approved by the Borrower,
whereupon such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective
upon such appointment and approval, and the former Agent's
rights, powers and duties as Administrative Agent shall be
terminated, without any other or further act or deed on the part
of such former Administrative Agent or any of the parties to this
Agreement or any holders of the Notes. After any retiring
Agent's resignation as Administrative Agent, the provisions of
this
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Section 8.9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative
Agent under this Agreement.
Section 8.10 Syndication Agent and Documentation Agent.
Neither the Syndication Agent nor the Documentation Agent
shall have any right, power, duty or obligation under this Credit
Agreement or any of the other Credit Documents other than those
applicable to all Lenders as such. Without limiting the
foregoing, none of such Lenders shall have or be deemed to have a
fiduciary relationship with any Lender. Each Lender hereby makes
the same acknowledgments with respect to such Lenders as it makes
with respect to the Agent in Section 8.6.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Amendments and Waivers.
Neither this Agreement, nor any of the Notes, nor any of the
other Credit Documents, nor any terms hereof or thereof may be
amended, supplemented, waived or modified except in accordance
with the provisions of this Section nor may be released except as
specifically provided herein or in accordance with the provisions
of this Section 9.1. The Required Lenders may, or, with the
written consent of the Required Lenders, the Administrative Agent
may, from time to time, (a) enter into with the Borrower written
amendments, supplements or modifications hereto and to the other
Credit Documents for the purpose of adding any provisions to this
Agreement or the other Credit Documents or changing in any manner
the rights of the Lenders or of the Borrower hereunder or
thereunder or (b) waive, on such terms and conditions as the
Required Lenders may specify in such instrument, any of the
requirements of this Agreement or the other Credit Documents or
any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, waiver,
supplement, modification or release shall:
(i) reduce the amount or extend the scheduled
date of maturity of any Loan, LOC Obligation or Note or
any installment thereon (including any mandatory
prepayment), or reduce the stated rate of any interest
or fee payable hereunder (other than interest at the
increased post-default rate) or extend the scheduled
date of any payment thereof or increase the amount or
extend the expiration date of any Lender's Commitment
or any LOC Obligation beyond the Revolving Commitment
Termination Date, in each case without the written
consent of each Lender directly affected thereby, or
(ii) amend, modify or waive any provision of this
Section 9.1 or reduce the percentage specified in the
definition of Required Lenders, without the written
consent of all the Lenders, or
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(iii) amend, modify or waive any provision of
Article VIII without the written consent of the then
Administrative Agent, or
(iv) release any of the Guarantors from their
obligations under the Guaranty, without the written
consent of all of the Lenders, or
(v) amend the definition of "Credit Party
Obligations" or alter the required application of
payments pursuant to Section 2.12(b) without the
consent of each Hedging Agreement Provider, or
(vi) amend, modify or waive any provision of the
Credit Documents requiring consent, approval or request
of the Required Lenders or all Lenders, without the
written consent of all of the Lenders and, provided,
further, that no amendment, waiver or consent affecting
the rights or duties of the Administrative Agent or the
Issuing Lender under any Credit Document shall in any
event be effective, unless in writing and signed by the
Administrative Agent and/or the Issuing Lender, as
applicable, in addition to the Lenders required
hereinabove to take such action.
Any such waiver, any such amendment, supplement or
modification and any such release shall apply equally to each of
the Lenders and shall be binding upon the Borrower, the other
Credit Parties, the Lenders, the Administrative Agent and all
future holders of the Notes. In the case of any waiver, the
Borrower, the other Credit Parties, the Lenders and the
Administrative Agent shall be restored to their former position
and rights hereunder and under the outstanding Loans and Notes
and other Credit Documents, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; but no
such waiver shall extend to any subsequent or other Default or
Event of Default, or impair any right consequent thereon.
Notwithstanding any of the foregoing to the contrary, the
consent of the Borrower shall not be required for any amendment,
modification or waiver of the provisions of Article VIII (other
than the provisions of Section 8.9); provided, however, that the
Administrative Agent will provide written notice to the Borrower
of any such amendment, modification or waiver. In addition, the
Borrower and the Lenders hereby authorize the Administrative
Agent to modify this Credit Agreement by unilaterally amending or
supplementing Schedule 2.1(a) from time to time in the manner
requested by the Borrower, the Administrative Agent or any Lender
in order to reflect any assignments or transfers of the Loans as
provided for hereunder; provided, however, that the
Administrative Agent shall promptly deliver a copy of any such
modification to the Borrower and each Lender.
Notwithstanding the fact that the consent of all the Lenders
is required in certain circumstances as set forth above, (x) each
Lender is entitled to vote as such Lender sees fit on any
bankruptcy reorganization plan that affects the Loans, and each
Lender acknowledges that the provisions of Section 1126(c) of the
Bankruptcy Code supersedes the unanimous consent provisions set
forth herein and (y) the Required Lenders may consent to allow a
Credit Party to use cash collateral in the context of a
bankruptcy or insolvency proceeding.
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Section 9.2 Notices.
Except as otherwise provided in Article II, all notices,
requests and demands to or upon the respective parties hereto to
be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to
have been duly given or made (a) when delivered by hand, (b) when
transmitted via telecopy (or other facsimile device) to the
number set out herein, (c) the 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, addressed as follows in the case
of the Borrower and the Administrative Agent, and as set forth on
Schedule 9.2 in the case of the Lenders, or to such other address
as may be hereafter notified by the respective parties hereto and
any future holders of the Notes:
The Borrower Florida Rock Industries, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
McGuireWoods LLP
Bank of America Tower
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative
Agent: Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Syndication Agency Services
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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Section 9.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the
part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of
any rights, remedies, powers and privileges provided by law.
Section 9.4 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any
document, certificate or statement delivered pursuant hereto or
in connection herewith shall survive the execution and delivery
of this Agreement and the Notes and the making of the Loans,
provided that all such representations and warranties shall
terminate on the date upon which the Commitments have been
terminated and all amounts owing hereunder and under any Notes
have been paid in full.
Section 9.5 Payment of Expenses and Taxes.
The Borrower agrees (a) to pay or reimburse the
Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with (i) the development,
preparation, negotiation, printing and execution of, and any
amendment, supplement or modification to, this Agreement and the
other Credit Documents and any other documents prepared in
connection herewith or therewith, (ii) the consummation and
administration of the transactions contemplated hereby and
thereby, and (iii) any investigation, including, without
limitation, background checks, performed to determine whether the
Borrower and any Subsidiary of the Borrower or any officer,
director, shareholder or Affiliate of the Borrower or any
Subsidiary of the Borrower has violated any Anti-Terrorism Law or
other similar law, in each case, together with the reasonable
fees and disbursements of counsel to the Administrative Agent,
(b) to pay or reimburse each Lender and the Administrative Agent
for all its costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement,
the Notes and any such other documents, including, without
limitation, the reasonable fees and disbursements of counsel to
the Administrative Agent and to the Lenders (including reasonable
allocated costs of in-house legal counsel), and (c) on demand, to
pay, indemnify, and hold each Lender and the Administrative Agent
harmless from, any and all recording and filing fees and any and
all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other similar taxes, if any, which may
be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of
any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or
in respect of, the Credit Documents and any such other documents,
and (d) to pay, indemnify, and hold each Lender and the
Administrative Agent and their Affiliates harmless from and
against, any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to
the execution, delivery, enforcement, performance and
administration of the Credit Documents and any such other
documents and the use, or proposed
70
use, of proceeds of the Loans (all of the foregoing, collectively,
the "indemnified liabilities"); provided, however, that the Borrower
shall not have any obligation hereunder to the Administrative Agent
or any Lender with respect to indemnified liabilities arising
from the gross negligence or willful misconduct of the Administrative
Agent or any such Lender, as determined by a court of competent
jurisdiction. The agreements in this Section 9.5 shall survive
repayment of the Loans, Notes and all other amounts payable
hereunder.
Section 9.6 Successors and Assigns; Participations;
Purchasing Lenders.
(a) This Agreement shall be binding upon and inure to
the benefit of the Borrower, the Lenders, the Administrative
Agent, the Syndication Agent, the Documentation Agent, all
future holders of the Notes and their respective successors
and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this
Agreement or the other Credit Documents without the prior
written consent of each Lender.
(b) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with
applicable law, at any time sell to one or more banks or
other entities ("Participants") participating interests in
any Loan owing to such Lender, any Note held by such Lender,
any Commitment of such Lender, or any other interest of such
Lender hereunder. In the event of any such sale by a Lender
of participating interests to a Participant, such Lender's
obligations under this Agreement to the other parties to
this Agreement shall remain unchanged, such Lender shall
remain solely responsible for the performance thereof, such
Lender shall remain the holder of any such Note for all
purposes under this Agreement, and the Borrower and the
Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. No Lender
shall transfer or grant any participation under which the
Participant shall have rights to approve any amendment to or
waiver of this Agreement or any other Credit Document except
to the extent such amendment or waiver would (i) extend the
scheduled maturity of any Loan or Note or any installment
thereon in which such Participant is participating, or
reduce the stated rate or extend the time of payment of
interest or fees thereon (except in connection with a waiver
of interest at the increased post-default rate) or reduce
the principal amount thereof, or increase the amount of the
Participant's participation over the amount thereof then in
effect (it being understood that a waiver of any Default or
Event of Default shall not constitute a change in the terms
of such participation, and that an increase in any
Commitment or Loan shall be permitted without consent of any
participant if the Participant's participation is not
increased as a result thereof), (ii) release any of the
Guarantors from their obligations under the Guaranty or
(iii) consent to the assignment or transfer by the Borrower
of any of its rights and obligations under this Agreement.
In the case of any such participation, the Participant shall
not have any rights under this Agreement or any of the other
Credit Documents (the Participant's rights against such
Lender in respect of such participation to be those set
forth in the agreement executed by such Lender in favor of
the Participant relating thereto) and all amounts payable by
the Borrower hereunder shall be determined as if such Lender
had not sold such participation,
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provided that each Participant shall be entitled to the
benefits of Sections 2.16, 2.17, 2.18 and 9.5 with respect to
its participation in the Commitments and the Loans outstanding
from time to time; provided, that no Participant shall be entitled
to receive any greater amount pursuant to such Sections than
the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such
transfer occurred.
(c) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with
applicable law, at any time, sell or assign to any Lender or
any affiliate thereof and with the consent of the
Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower (in each case,
which consent shall not be unreasonably withheld), to one or
more additional banks or financial institutions ("Purchasing
Lenders"), all or any part of its rights and obligations
under this Agreement and the Notes in minimum amounts of
$5,000,000 with respect to its Revolving Commitment and its
Revolving Loans (or, if less, the entire amount of such
Lender's obligations), pursuant to a Commitment Transfer
Supplement, executed by such Purchasing Lender and such
transferor Lender (and, in the case of a Purchasing Lender
that is not then a Lender or an affiliate thereof, the
Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower), and delivered to
the Administrative Agent for its acceptance and recording in
the Register; provided, however, that any sale or assignment
to an existing Lender or any Affiliate of an existing Lender
shall not require the consent of the Administrative Agent or
the Borrower nor shall any such sale or assignment be
subject to the minimum assignment amounts specified herein.
Upon such execution, delivery, acceptance and recording,
from and after the Transfer Effective Date specified in such
Commitment Transfer Supplement, (x) the Purchasing Lender
thereunder shall be a party hereto and, to the extent
provided in such Commitment Transfer Supplement, have the
rights and obligations of a Lender hereunder with a
Commitment as set forth therein, and (y) the transferor
Lender thereunder shall, to the extent provided in such
Commitment Transfer Supplement, be released from its
obligations under this Agreement (and, in the case of a
Commitment Transfer Supplement covering all or the remaining
portion of a transferor Lender's rights and obligations
under this Agreement, such transferor Lender shall cease to
be a party hereto). Such Commitment Transfer Supplement
shall be deemed to amend this Agreement to the extent, and
only to the extent, necessary to reflect the addition of
such Purchasing Lender and the resulting adjustment of
Commitment Percentages arising from the purchase by such
Purchasing Lender of all or a portion of the rights and
obligations of such transferor Lender under this Agreement
and the Notes. On or prior to the Transfer Effective Date
specified in such Commitment Transfer Supplement, the
Borrower, at its own expense, shall execute and deliver to
the Administrative Agent in exchange for the Notes delivered
to the Administrative Agent pursuant to such Commitment
Transfer Supplement new Notes to the order of such
Purchasing Lender in an amount equal to the Commitment
assumed by it pursuant to such Commitment Transfer
Supplement and, unless the transferor Lender has not
retained a Commitment hereunder, new Notes to the order of
the transferor Lender in an amount equal to the Commitment
retained by it hereunder. Such new Notes shall be dated the
Closing Date and shall otherwise be in the form of the
72
Notes replaced thereby. The Notes surrendered by the transferor
Lender shall be returned by the Administrative Agent to the
Borrower marked "canceled".
(d) The Administrative Agent shall maintain at its
address referred to in Section 9.2 a copy of each Commitment
Transfer Supplement delivered to it and a register (the
"Register") for the recordation of the names and addresses
of the Lenders and the Commitment of, and principal amount
of the Loans owing to, each Lender 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 may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded
therein for all purposes of this Agreement. 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.
(e) Upon its receipt of a duly executed Commitment
Transfer Supplement, together with payment to the
Administrative Agent by the transferor Lender or the
Purchasing Lender, as agreed between them, of a registration
and processing fee of $3,000 for each Purchasing Lender
listed in such Commitment Transfer Supplement and the Notes
subject to such Commitment Transfer Supplement, the
Administrative Agent shall (i) accept such Commitment
Transfer Supplement, (ii) record the information contained
therein in the Register and (iii) give prompt notice of such
acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to
any Participant or Purchasing Lender (each, a "Transferee")
and any prospective Transferee any and all information in
such Lender's possession concerning the Borrower and its
Affiliates which has been delivered to such Lender by or on
behalf of the Borrower pursuant to this Agreement or which
has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation
of the Borrower and its Affiliates prior to becoming a party
to this Agreement, in each case subject to Section 9.16.
(g) At the time of each assignment pursuant to this
Section 9.6 to a Person which is not already a Lender
hereunder and which is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for
Federal income tax purposes, the respective assignee Lender
shall provide to the Borrower and the Administrative Agent
the appropriate Internal Revenue Service Forms (and, if
applicable, a 2.18 Certificate) described in Section 2.18.
(h) Nothing herein shall prohibit any Lender from
pledging or assigning any of its rights under this Agreement
(including, without limitation, any right to payment of
principal and interest under any Note) to any Federal
Reserve Bank in accordance with applicable laws.
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Section 9.7 Adjustments; Set-off.
(a) Each Lender agrees that if any Lender (a
"benefited Lender") shall at any time receive any payment of
all or part of its Loans, or interest thereon, in respect
thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to
in Section 7.1(f), or otherwise) in a greater proportion
than any such payment to any other Lender, if any, in
respect of such other Lender's Loans, or interest thereon,
such benefited Lender shall purchase for cash from the other
Lenders a participating interest in such portion of each
such other Lender's Loan, as shall be necessary to cause
such benefited Lender to share the excess payment ratably
with each of the Lenders; provided, however, that if all or
any portion of such excess payment or benefits is thereafter
recovered from such benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. The
Borrower agrees that each Lender so purchasing a portion of
another Lender's Loans may exercise all rights of payment
(including, without limitation, rights of set-off) with
respect to such portion as fully as if such Lender were the
direct holder of such portion.
(b) In addition to any rights and remedies of the
Lenders provided by law (including, without limitation,
other rights of set-off), each Lender shall have the right,
without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by
applicable law, upon the occurrence of any Event of Default,
to setoff and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final),
in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of the
Borrower, or any part thereof in such amounts as such Lender
may elect, against and on account of the obligations and
liabilities of the Borrower to such Lender hereunder and
claims of every nature and description of such Lender
against the Borrower, in any currency, whether arising
hereunder, under the Notes or under any documents
contemplated by or referred to herein or therein, as such
Lender may elect, whether or not such Lender has made any
demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The
aforesaid right of set-off may be exercised by such Lender
against the Borrower or against any trustee in bankruptcy,
debtor in possession, assignee for the benefit of creditors,
receiver or execution, judgment or attachment creditor of
the Borrower, or against anyone else claiming through or
against the Borrower or any such trustee in bankruptcy,
debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall
not have been exercised by such Lender prior to the
occurrence of any Event of Default. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent
after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice
shall not affect the validity of such set-off and
application.
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Section 9.8 Table of Contents and Section Headings.
The table of contents and the Section and subsection
headings herein are intended for convenience only and shall be
ignored in construing this Agreement.
Section 9.9 Counterparts.
This Agreement may be executed by one or more of the parties
to this Agreement on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute
one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
Section 9.10 Effectiveness.
This Credit Agreement shall become effective on the date on
which all of the parties have signed a copy hereof (whether the
same or different copies) and shall have delivered the same to
the Administrative Agent pursuant to Section 9.2 or, in the case
of the Lenders, shall have given to the Administrative Agent
written, telecopied or telex notice (actually received) at such
office that the same has been signed and mailed to it.
Section 9.11 Severability.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
Section 9.12 Integration.
This Agreement and the Notes represent the agreement of the
Borrower, the Administrative Agent and the Lenders with respect
to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative
Agent, the Borrower or any Lender relative to the subject matter
hereof not expressly set forth or referred to herein or in the
Notes.
Section 9.13 Governing Law.
This Agreement and the Notes and the rights and obligations
of the parties under this Agreement and the Notes shall be
governed by, and construed and interpreted in accordance with,
the law of the State of Florida.
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Section 9.14 Consent to Jurisdiction and Service of
Process.
All judicial proceedings brought against the Borrower and/or
any other Credit Party with respect to this Agreement, any Note
or any of the other Credit Documents may be brought in any state
or federal court of competent jurisdiction in the Fourth Judicial
Circuit, ▇▇▇▇▇ County, Florida or any federal court located in
the Middle District of Florida, and, by execution and delivery of
this Agreement, the Borrower and each of the other Credit Parties
accepts, for itself and in connection with its properties,
generally and unconditionally, the non-exclusive jurisdiction of
the aforesaid courts and irrevocably agrees to be bound by any
final judgment rendered thereby in connection with this Agreement
from which no appeal has been taken or is available. Each of the
Borrower and the other Credit Parties irrevocably agrees that all
service of process in any such proceedings in any such court may
be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage
prepaid, to it at its address set forth in Section 9.2 or at such
other address of which the Administrative Agent shall have been
notified pursuant thereto, such service being hereby acknowledged
by the Borrower to be effective and binding service in every
respect. The Borrower, each of the other Credit Parties, the
Administrative Agent and the Lenders irrevocably waives any
objection, including, without limitation, any objection to the
laying of venue or based on the grounds of forum non conveniens
which it may now or hereafter have to the bringing of any such
action or proceeding in any such jurisdiction. Nothing herein
shall affect the right to serve process in any other manner
permitted by law or shall limit the right of any Lender to bring
proceedings against the Borrower or the other Credit Parties in
the court of any other jurisdiction.
Section 9.15 Arbitration.
(a) Notwithstanding the provisions of Section 9.14 to
the contrary, upon demand of any party hereto, whether made
before or within three (3) months after institution of any
judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to this Agreement
and other Credit Documents ("Disputes") between or among
parties to this Agreement shall be subject to non-binding
arbitration as provided herein. Institution of a judicial
proceeding by a party does not waive the right of that party
to demand arbitration hereunder. Disputes may include,
without limitation, tort claims, counterclaims, disputes as
to whether a matter is subject to arbitration, claims
brought as class actions, claims arising from Credit
Documents executed in the future, or claims arising out of
or connected with the transaction reflected by this
Agreement.
Arbitration shall be conducted under and governed by
the Commercial Arbitration Rules (the "Arbitration Rules")
of the American Arbitration Association (the "AAA") and
Title 9 of the U.S. Code. All arbitration hearings shall be
conducted in New York, New York. A hearing shall begin
within 90 days of demand for arbitration and all hearings
shall be concluded within 120 days of demand for
arbitration. These time limitations may not be extended
unless a party shows cause for extension and then no more
than a total extension of 60 days. The expedited procedures
set forth in Rule 51 et seq. of the Arbitration Rules shall
be applicable to claims of less than $1,000,000. All
applicable statutes of limitation shall apply to any
Dispute. Arbitrators shall be licensed
76
attorneys selected from the Commercial Financial Dispute
Arbitration Panel of the AAA. The parties hereto do not waive
applicable Federal or state substantive law except as provided
herein. Notwithstanding the foregoing, this arbitration provision
does not apply to disputes under or related to Hedging
Agreements.
(b) Notwithstanding the preceding arbitration
provisions, the Administrative Agent, the Lenders, the
Borrower and the other Credit Parties agree to preserve,
without diminution, certain remedies that the Administrative
Agent on behalf of the Lenders may employ or exercise
freely, independently or in connection with an arbitration
proceeding or after an arbitration action is brought. The
Administrative Agent on behalf of the Lenders shall have the
right to proceed in any court of proper jurisdiction or by
self-help to exercise or prosecute the following remedies,
as applicable (i) any rights to foreclose against any real
or personal property or other security by exercising a power
of sale granted under Credit Documents or under applicable
law or by judicial foreclosure and sale, including a
proceeding to confirm the sale; (ii) any rights of self-help
including peaceful occupation of real property and
collection of rents, set-off, and peaceful possession of
personal property; (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration,
garnishment, attachment, appointment of receiver and filing
an involuntary bankruptcy proceeding; and (iv) when
applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of
an arbitrator to grant similar remedies that may be
requested by a party in a Dispute.
(c) The parties hereto agree that they shall not have
a remedy of punitive or exemplary damages against the other
in any Dispute and hereby waive any right or claim to
punitive or exemplary damages they have now or which may
arise in the future in connection with any Dispute whether
the Dispute is resolved by arbitration or judicially.
(d) By execution and delivery of this Agreement, each
of the parties hereto accepts, for itself and in connection
with its properties, generally and unconditionally, the non-
exclusive jurisdiction relating to any arbitration
proceedings conducted under the Arbitration Rules in New
York, New York and irrevocably agrees to be bound by any
final judgment rendered thereby in connection with this
Agreement from which no appeal has been taken or is
available.
Section 9.16 Confidentiality.
The Administrative Agent and each of the Lenders agrees that
it will use its best efforts not to disclose without the prior
consent of the Borrower (other than to its employees, affiliates,
auditors or counsel or to another Lender) any information with
respect to the Borrower and its Subsidiaries which is furnished
pursuant to this Agreement, any other Credit Document or any
documents contemplated by or referred to herein or therein and
which is designated by the Borrower to the Lenders in writing as
confidential or as to which it is otherwise reasonably clear such
information is not public, except that the Administrative Agent
and any Lender may disclose any such information (a) as has
become generally available to the public other than by a
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breach of this Section 9.16, (b) as may be required or appropriate in
any report, statement or testimony submitted to any municipal,
state or federal regulatory body having or claiming to have
jurisdiction over such Lender or to the Federal Reserve Board or
the Federal Deposit Insurance Corporation or the OCC or the NAIC
or similar organizations (whether in the United States or
elsewhere) or their successors, (c) as may be required or
appropriate in response to any summons or subpoena or any law,
order, regulation or ruling applicable to such Lender, (d) to any
prospective Participant or assignee in connection with any
contemplated transfer pursuant to Section 9.6, provided that such
prospective transferee shall have been made aware of this Section
9.16 and shall have agreed to be bound by its provisions as if it
were a party to this Agreement, (e) to any actual or prospective
counterparty (or its advisors) to any Hedging Agreement relating
to the Borrower or any of its Subsidiaries and their respective
obligations; provided that such prospective counterparty shall
have agreed to be bound by the confidentiality provisions set
forth in this Section; (f) in connection with any litigation to
which the Administrative Agent or a Lender or any of its
affiliates may be a party, whether to defend itself, reduce its
liability, protect or exercise any of its claims, rights,
remedies or interests under or in connection with the Credit
Documents or any Hedging Agreement entered into with a Hedging
Agreement Provider, or (g) to Gold Sheets and other similar bank
trade publications; such information to consist of deal terms and
other information regarding the credit facilities evidenced by
this Credit Agreement customarily found in such publications.
Section 9.17 Acknowledgments.
The Borrower and each of the other Credit Parties hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of each Credit Document;
(b) neither the Administrative Agent nor any Lender
has any fiduciary relationship with or duty to the Borrower
or any other Credit Party arising out of or in connection
with this Agreement and the relationship between
Administrative Agent and Lenders, on one hand, and the
Borrower and the other Credit Parties, on the other hand, in
connection herewith is solely that of debtor and creditor;
and
(c) no joint venture exists among the Lenders or among
the Borrower or the other Credit Parties and the Lenders.
Section 9.18 Waivers of Jury Trial.
THE BORROWER, THE OTHER CREDIT PARTIES, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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Section 9.19 Patriot Act Notice.
Each Lender and the Administrative Agent (for itself and not
on behalf of any other party) hereby notifies the Borrower that,
pursuant to the requirements of the USA Patriot Act, Title III of
Pub. L. 107-56, signed into law October 26, 2001 (the "Patriot
Act"), it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow
such Lender or the Administrative Agent, as applicable, to
identify the Borrower in accordance with the Patriot Act.
ARTICLE X
GUARANTY
Section 10.1 The Guaranty.
In order to induce the Lenders to enter into this Agreement
and to extend credit hereunder and in recognition of the direct
benefits to be received by the Guarantors from the Extensions of
Credit hereunder, each of the Guarantors hereby agrees with the
Administrative Agent and the Lenders as follows: each Guarantor
hereby unconditionally and irrevocably jointly and severally
guarantees as primary obligor and not merely as surety the full
and prompt payment when due, whether upon maturity, by
acceleration or otherwise, of any and all indebtedness of the
Borrower to the Administrative Agent and the Lenders. If any or
all of the indebtedness of the Borrower to the Administrative
Agent and the Lenders becomes due and payable hereunder, each
Guarantor unconditionally promises to pay such indebtedness to
the Administrative Agent and the Lenders, or order, on demand,
together with any and all reasonable expenses which may be
incurred by the Administrative Agent or the Lenders in collecting
any of the indebtedness. The word "indebtedness" is used in this
Article X in its most comprehensive sense and includes any and
all advances, debts, obligations and liabilities of the Borrower,
including specifically all Credit Party Obligations, arising in
connection with this Agreement, the other Credit Documents or any
Hedging Agreement executed in connection herewith, in each case,
heretofore, now, or hereafter made, incurred or created, whether
voluntarily or involuntarily, absolute or contingent, liquidated
or unliquidated, determined or undetermined, whether or not such
indebtedness is from time to time reduced, or extinguished and
thereafter increased or incurred, whether the Borrower may be
liable individually or jointly with others, whether or not
recovery upon such indebtedness may be or hereafter become barred
by any statute of limitations, and whether or not such
indebtedness may be or hereafter become otherwise unenforceable.
Notwithstanding any provision to the contrary contained
herein or in any other of the Credit Documents, to the extent the
obligations of a Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation,
because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of each
such Guarantor hereunder shall be limited to the maximum amount
that is permissible under applicable law (whether federal or
state and including, without limitation, the Bankruptcy Code).
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Section 10.2 Bankruptcy.
Additionally, each of the Guarantors unconditionally and
irrevocably guarantees jointly and severally the payment of any
and all indebtedness of the Borrower to the Lenders whether or
not due or payable by the Borrower upon the occurrence of any of
the events specified in Section 7.1(e), and unconditionally
promises to pay such indebtedness to the Administrative Agent for
the account of the Lenders, or order, on demand, in lawful money
of the United States. Each of the Guarantors further agrees that
to the extent that the Borrower or a Guarantor shall make a
payment or a transfer of an interest in any property to the
Administrative Agent or any Lender, which payment or transfer or
any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, or otherwise is avoided, and/or
required to be repaid to the Borrower or a Guarantor, the estate
of the Borrower or a Guarantor, a trustee, receiver or any other
party under any bankruptcy law, state or federal law, common law
or equitable cause, then to the extent of such avoidance or
repayment, the obligation or part thereof intended to be
satisfied shall be revived and continued in full force and effect
as if said payment had not been made.
Section 10.3 Nature of Liability.
The liability of each Guarantor hereunder is exclusive and
independent of any security for or other guaranty of the
indebtedness of the Borrower whether executed by any such
Guarantor, any other guarantor or by any other party, and no
Guarantor's liability hereunder shall be affected or impaired by
(a) any direction as to application of payment by the Borrower or
by any other party, or (b) any other continuing or other
guaranty, undertaking or maximum liability of a guarantor or of
any other party as to the indebtedness of the Borrower, or
(c) any payment on or in reduction of any such other guaranty or
undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by the Borrower, or (e) any
payment made to the Administrative Agent or the Lenders on the
indebtedness which the Administrative Agent or such Lenders repay
the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief
proceeding, and each of the Guarantors waives any right to the
deferral or modification of its obligations hereunder by reason
of any such proceeding.
Section 10.4 Independent Obligation.
The obligations of each Guarantor hereunder are independent
of the obligations of any other guarantor or the Borrower, and a
separate action or actions may be brought and prosecuted against
each Guarantor whether or not action is brought against any other
guarantor or the Borrower and whether or not any other Guarantor
or the Borrower is joined in any such action or actions.
Section 10.5 Authorization.
Each of the Guarantors authorizes the Administrative Agent
and each Lender without notice or demand (except as shall be
required by applicable statute and cannot be waived), and without
affecting or impairing its liability hereunder, from time to time
to (a) renew,
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compromise, extend, increase, accelerate or otherwise change the
time for payment of, or otherwise change the terms of the
indebtedness or any part thereof in accordance with this Agreement,
including any increase or decrease of the rate of interest thereon,
(b) take and hold security from any guarantor or any other party
for the payment of the Guaranty or the indebtedness and exchange,
enforce waive and release any such security, (c) apply such security
and direct the order or manner of sale thereof as the Administrative
Agent and the Lenders in their discretion may determine and (d)
release or substitute any one or more endorsers, guarantors, the
Borrower or other obligors.
Section 10.6 Reliance.
It is not necessary for the Administrative Agent or the
Lenders to inquire into the capacity or powers of the Borrower or
the officers, directors, members, partners or agents acting or
purporting to act on its behalf, and any indebtedness made or
created in reliance upon the professed exercise of such powers
shall be guaranteed hereunder.
Section 10.7 Waiver.
(a) Each of the Guarantors waives any right (except as
shall be required by applicable statute and cannot be
waived) to require the Administrative Agent or any Lender to
(i) proceed against the Borrower, any other guarantor or any
other party, (ii) proceed against or exhaust any security
held from the Borrower, any other guarantor or any other
party, or (iii) pursue any other remedy in the
Administrative Agent's or any Lender's power whatsoever.
Each of the Guarantors waives any defense based on or
arising out of any defense of the Borrower, any other
guarantor or any other party other than payment in full of
the indebtedness, including without limitation any defense
based on or arising out of the disability of the Borrower,
any other guarantor or any other party, or the
unenforceability of the indebtedness or any part thereof
from any cause, or the cessation from any cause of the
liability of the Borrower other than payment in full of the
indebtedness. Without limiting the generality of the
provisions of this Article X, each of the Guarantors hereby
specifically waives the benefits of N.C. Gen. Stat. 26-7
through 26-9, inclusive. The Administrative Agent or any of
the Lenders may, at their election, exercise any right or
remedy the Administrative Agent and any Lender may have
against the Borrower or any other party, or any security,
without affecting or impairing in any way the liability of
any Guarantor hereunder except to the extent the
indebtedness has been paid. Each of the Guarantors waives
any defense arising out of any such election by the
Administrative Agent and each of the Lenders, even though
such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of the
Guarantors against the Borrower or any other party.
(b) Each of the Guarantors waives all presentments,
demands for performance, protests and notices, including
without limitation notices of nonperformance, notice of
protest, notices of dishonor, notices of acceptance of the
Guaranty, and notices of the existence, creation or
incurring of new or additional indebtedness. Each Guarantor
assumes all responsibility for being and keeping itself
informed of the Borrower's
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financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the indebtedness and the
nature, scope and extent of the risks which such Guarantor
assumes and incurs hereunder, and agrees that neither the
Administrative Agent nor any Lender shall have any duty to
advise such Guarantor of information known to it regarding
such circumstances or risks.
(c) Each of the Guarantors hereby agrees it will not
exercise any rights of subrogation which it may at any time
otherwise have as a result of the Guaranty (whether
contractual, under Section 509 of the U.S. Bankruptcy Code,
or otherwise) to the claims of the Lenders against the
Borrower or any other guarantor of the indebtedness of the
Borrower owing to the Lenders (collectively, the "Other
Parties") and all contractual, statutory or common law
rights of reimbursement, contribution or indemnity from any
Other Party which it may at any time otherwise have as a
result of the Guaranty until such time as the Loans
hereunder shall have been paid and the Commitments have been
terminated. Each of the Guarantors hereby further agrees
not to exercise any right to enforce any other remedy which
the Administrative Agent and the Lenders now have or may
hereafter have against any Other Party, any endorser or any
other guarantor of all or any part of the indebtedness of
the Borrower and any benefit of, and any right to
participate in, any security or collateral given to or for
the benefit of the Lenders to secure payment of the
indebtedness of the Borrower until such time as the Loans
hereunder shall have been paid and the Commitments have been
terminated.
Section 10.8 Limitation on Enforcement.
The Lenders agree that the Guaranty may be enforced only by
the action of the Administrative Agent acting upon the
instructions of the Required Lenders and that no Lender shall
have any right individually to seek to enforce or to enforce the
Guaranty, it being understood and agreed that such rights and
remedies may be exercised by the Administrative Agent for the
benefit of the Lenders under the terms of this Agreement. The
Lenders further agree that this Guaranty may not be enforced
against any director, officer, employee or stockholder of the
Guarantors.
Section 10.9 Confirmation of Payment.
The Administrative Agent and the Lenders will, upon request
after payment of the indebtedness and obligations which are the
subject of the Guaranty and termination of the Commitments
relating thereto, confirm to the Borrower, the Guarantors or any
other Person that such indebtedness and obligations have been
paid and the Commitments relating thereto terminated, subject to
the provisions of Section 10.2.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by its proper and
duly authorized officers as of the day and year first above
written.
BORROWER: FLORIDA ROCK INDUSTRIES, INC.,
a Florida corporation
By: ________________________________
Name:
Title:
GUARANTORS: VIRGINIA CONCRETE COMPANY INCORPORATED,
a Virginia corporation
By: ________________________________
Name:
Title:
MARYLAND ROCK INDUSTRIES, INC.,
a Maryland corporation
By: _________________________________
Name:
Title:
FLORIDA CEMENT, INC.,
a Florida corporation
By: _________________________________
Name:
Title:
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THE ARUNDEL CORPORATION,
a Maryland corporation
By: _________________________________
Name:
Title:
MARYLAND STONE, INC.,
a Maryland corporation
By: ________________________________
Name:
Title:
S&G CONCRETE CO.,
a North Carolina corporation
By: ________________________________
Name:
Title:
TCS MATERIALS, INC.,
a Virginia corporation
By: ________________________________
Name:
Title:
TIDEWATER QUARRIES, INC.,
a Virginia corporation
By: ________________________________
Name:
Title:
84
▇▇▇▇▇▇ BROS. INC.,
a Florida corporation
By: _________________________________
Name:
Title:
85
ADMINISTRATIVE AGENT
AND LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and as a Lender
By: _________________________________
Name:
Title:
BANK OF AMERICA, N.A., as Syndication
Agent
and as a Lender
By: _________________________________
Name:
Title:
SUNTRUST BANK, as Documentation Agent
and as a Lender
By: ________________________________
Name:
Title:
MANUFACTURERS & TRADERS TRUST CO.,
as a Lender
By: ________________________________
Name:
Title:
COLUMBUS BANK AND TRUST COMPANY,
as a Lender
By: ________________________________
Name:
Title:
COMPASS BANK,
as a Lender
By: ________________________________
Name:
Title:
BRANCH BANKING AND TRUST,
as a Lender
By: ________________________________
Name:
Title: