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AMENDED AND RESTATED CREDIT AGREEMENT
dated as of January 29, 2001
by and among
SUBURBAN PROPANE, L.P.,
as Borrower,
the Lenders referred to herein,
FIRST UNION NATIONAL BANK,
as Administrative Agent,
FLEET NATIONAL BANK,
as Syndication Agent,
and
THE BANK OF NEW YORK,
as Managing Agent
FIRST UNION SECURITIES, INC.,
as Lead Arranger
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the 29th day of
January, 2001, by and among SUBURBAN PROPANE, L.P., a limited partnership
organized under the laws of Delaware (the "Borrower"), the Lenders who are or
may become a party hereto, in their capacity as Lenders and in such other
capacities as reflected on the signature pages hereto and FIRST UNION NATIONAL
BANK, as Administrative Agent.
STATEMENT OF PURPOSE
--------------------
Pursuant to the Credit Agreement dated as of December 10, 1999 (as
amended by the First Amendment to Credit Agreement dated December 22, 1999, the
"Original Credit Agreement"), by and among the Borrower, the lenders party
thereto (the "Original Lenders") and the Administrative Agent, the Original
Lenders extended certain credit facilities to the Borrower pursuant to the terms
thereof.
The Borrower has requested, and, subject to the terms and conditions
hereof, the Administrative Agent and the Lenders have agreed, to amend and
restate the Original Credit Agreement on the terms and conditions of this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree that the Original Credit Agreement is hereby amended and restated
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"ACQUISITION COMMITMENT" means, (a) as to any Lender, the obligation of
such Lender to make Acquisition Loans to the Borrower hereunder in an aggregate
principal amount at any time outstanding not to exceed the amount so designated
opposite such Lender's name on Schedule 1 hereto, as the same may be reduced or
modified at any time or from time to time pursuant to the terms hereof, and (b)
as to all Lenders, the aggregate commitment of all Lenders to make Acquisition
Loans, as such amount may be increased or reduced at any time from time to time
pursuant to the terms hereof. The Acquisition Commitment of all Lenders on the
Closing Date shall be Fifty Million Dollars ($50,000,000).
"ACQUISITION COMMITMENT PERCENTAGE" means, as to any Lender at anytime,
the ratio of (a) the amount of the Acquisition Commitment of such Lender to (b)
the Acquisition Commitment of all of the Lenders.
"ACQUISITION FACILITY" means the acquisition loan facility established
pursuant to Article II hereof.
"ACQUISITION LOAN" means any of the acquisition loans made by the
Lenders to the Borrower pursuant to Section 2.4 and all such loans collectively
as the context requires.
"ACQUISITION NOTES" means the separate Acquisition Notes made by the
Borrower payable to the order of each Lender, substantially in the form of
Exhibit A-2 hereto, evidencing the Acquisition Facility, and any amendments and
modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extension thereof, in whole or in part; "Acquisition
Note" means any of such Acquisition Notes.
"ADJUSTED OPERATING SURPLUS" has the meaning assigned thereto in the
Parent Partnership Agreement, as in effect on the date hereof.
"ADMINISTRATIVE AGENT" means First Union in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 12.9.
"ADMINISTRATIVE AGENT'S OFFICE" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1.
"AFFILIATE" means, with respect to any Person, any other Person (other
than a Subsidiary) which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person or any of its Subsidiaries. The term "control" means the
possession, directly or indirectly, of any other power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"AGGREGATE COMMITMENT" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be increased, reduced or otherwise
modified at any time or from time to time pursuant to the terms hereof. On the
Closing Date, the Aggregate Commitment shall be One Hundred Twenty Five Million
Dollars ($125,000,000).
"AGREEMENT" means this Amended and Restated Credit Agreement, as
further amended, restated, supplemented or otherwise modified from time to time.
"APPLICABLE LAW" means all applicable provisions of constitutions,
statutes, laws, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of all Governmental Authorities and all
orders and decrees of all courts and arbitrators.
"APPLICABLE MARGIN" has the meaning assigned thereto in Section 4.7(c).
"Application" means an application, in the form specified by the
Issuing Lender from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
"ARBITRATION RULES" has the meaning assigned thereto in Section
13.6(a).
"ASSIGNMENT AND ACCEPTANCE" has the meaning assigned thereto in Section
13.10.
"AVAILABLE CASH" means, with respect to any fiscal quarter of the
Borrower:
(a) the sum of (i) all cash and cash equivalents of the
Borrower and its Subsidiaries on hand at the end of such quarter and (ii) all
additional cash and cash equivalents of the Borrower and its Subsidiaries on
hand on the date of determination of Available Cash with respect to such quarter
resulting from borrowings hereunder, LESS
(b) the amount of cash reserves that is necessary or
appropriate in the reasonable discretion of the Board of Supervisors of the
Borrower to (i) provide for the proper conduct of the business of the Borrower
and its Subsidiaries (including reserves for future capital expenditures)
subsequent to such quarter, (ii) comply with Applicable Law or any loan
agreement (including, but not limited to, this Agreement), security agreement,
mortgage, debt instrument or other agreement or obligation to which the Borrower
or any Subsidiary is a party or by which it is bound or its assets are subject
and which is permitted by the terms hereof or (iii) provide funds for
distributions to partners of the Parent and the General Partner in respect of
any one or more of the next succeeding four fiscal quarters; PROVIDED that the
Board of Supervisors shall not establish cash reserves pursuant to clause (iii)
if the effect of such reserves would be that the Parent is unable to distribute
the Minimum Quarterly Distribution on the Common Units with respect to such
quarter; and PROVIDED, FURTHER, that disbursements made or cash reserves
established, increased or reduced after the end of such quarter but on or before
the date of determination of Available Cash with respect to such quarter shall
be deemed to have been made, established, increased or reduced, for purposes of
determining Available Cash, within such quarter if the Board of Supervisors of
the Borrower so determines.
In addition, without limitation or duplication of the foregoing,
Available Cash for any fiscal quarter shall reflect reserves equal to (A) 50% of
the interest projected to be paid on the Senior Notes, the Refinancing Notes and
any Loans outstanding or projected to be outstanding hereunder in the next
succeeding fiscal quarter and (B) beginning with a date three fiscal quarters
before a scheduled principal payment date on the Senior Notes, the Refinancing
Notes or the Loans, 25% of the aggregate principal amount thereof due on any
such payment date in the third succeeding fiscal quarter, 50% of the aggregate
principal amount due on any such quarterly payment date in the second succeeding
fiscal quarter and 75% of the aggregate principal amount due on any quarterly
payment date in the next succeeding fiscal quarter and (C) the aggregate amount
deemed not to constitute Designated Net Proceeds pursuant to the further proviso
contained in the definition of "Designated Net Proceeds". The foregoing reserves
for amounts to be paid at any time shall be reduced by the amount of the Blocked
Portion then in effect.
"BASE RATE" means, at any time, the higher of (a) the Prime Rate or (b)
the Federal Funds Rate PLUS 1/2 of 1%; each change in the Base Rate shall take
effect simultaneously with the corresponding change or changes in the Prime Rate
or the Federal Funds Rate.
"BASE RATE LOAN" means any Loan bearing interest at a rate based upon
the Base Rate as provided in SECTION 4.7(a).
"BENEFITED LENDER" has the meaning assigned thereto in SECTION 4.12.
"BLOCKED PORTION" has the meaning assigned thereto in Section 2.1(b).
"BOARD OF SUPERVISORS" means, with respect to the Parent or the
Borrower, as the case may be, such Board of Supervisors as defined in the Parent
Partnership Agreement or the Borrower Partnership Agreement, as applicable.
"BORROWER" means Suburban Propane, L.P. in its capacity as borrower
hereunder.
"BORROWER PARTNERSHIP AGREEMENT" means the Second Amended and Restated
Agreement of Limited Partnership of the Borrower, as in effect on the date
hereof and as it may be amended, supplemented or otherwise modified from time to
time.
"BUSINESS" means the propane business, assets and liabilities of the
Borrower and its Subsidiaries.
"BUSINESS DAY" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina and New York, New York, are open for
the conduct of their commercial banking business, and (b) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan, any day that is a Business Day described in
clause (a) and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
"CAPITAL ASSET" means, with respect to the Borrower and its
Subsidiaries, any asset that should, in accordance with GAAP, be classified and
accounted for as a capital asset on a Consolidated balance sheet of the Borrower
and its Subsidiaries.
"CAPITAL LEASE" means, with respect to the Borrower and its
Subsidiaries, any lease of any property that should, in accordance with GAAP, be
classified and accounted for as a capital lease on a Consolidated balance sheet
of the Borrower and its Subsidiaries.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any preferred stock, any limited or general partnership interest and
any limited liability company membership interest.
"CHANGE IN OWNERSHIP" means the occurrence, at any time prior to the
Termination Date, of any of the following events: (a) any Person or group of
Persons, other than those Persons owning Capital Stock of the General Partner on
the Closing Date, shall acquire, directly or indirectly, (i) more than 50% of
the outstanding Capital Stock of the General Partner entitled to vote in the
election or removal of the members of the Board of Supervisors or (ii)
outstanding Capital Stock of the General Partner entitled to more than 50% of
the assets of the General Partner upon the dissolution or liquidation thereof,
(b) the General Partner shall fail to own directly or indirectly, beneficially
and of record, 100% of the general partner interests in each of the Parent and
the Borrower, (c) a majority of the seats (excluding vacant seats) on the Board
of Supervisors of the Parent or the Borrower should at any time after the
Closing Date be occupied by Persons who were not nominated by the General
Partner, by a majority of the Board of Supervisors of the Parent or the Borrower
or by Persons so nominated or (d) a change in control with respect to the
General Partner, the Parent, or the Borrower (or similar event, however
denominated) should occur under and as defined in any indenture or agreement in
respect of Indebtedness in an aggregate outstanding principal amount in excess
of $10,000,000 to which the General Partner, the Parent, the Borrower or any
Subsidiary is party.
"CLEANDOWN PERIOD" means a period of thirty (30) consecutive days
selected by the Borrower during each Fiscal Year.
"CLOSING DATE" means the date of this Agreement or such later Business
Day upon which each condition described in Article V shall be satisfied or
waived in all respects in a manner acceptable to the Administrative Agent, in
its sole discretion.
"CODE" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or supplemented from time to time.
"COMMITMENT" means, as to any Lender, on a collective basis, such
Lender's Acquisition Commitment and Revolving Credit Commitment, as set forth
opposite such Lender's name on Schedule 1 hereto, as the same may be reduced or
modified at any time or from time to time pursuant to the terms hereof.
"COMMITMENT PERCENTAGE" means, as to any Lender at any time, the ratio
of (a) the amount of the Commitment of such Lender to (b) the Aggregate
Commitment of all of the Lenders.
"COMMODITY HEDGING AGREEMENT" means any agreement with respect to a
commodity swap or other agreement regarding the hedging of commodity purchase
and sale exposure executed in connection with hedging the commodity purchase and
sale exposure of the Borrower and its Subsidiaries, and any confirming letter
executed pursuant to such commodity hedging agreement, all as amended, restated
or otherwise modified.
"COMMON UNITS" means Common Units of the Parent representing limited
partner interests in the Parent.
"COMPENSATION DEFERRAL PLAN" means the Compensation Deferral Plan of
the Parent and the Borrower as in effect on the date hereof and as amended,
restated or supplemented from time to time in accordance with the provisions of
this Agreement.
"CONSOLIDATED" means, when used with reference to financial statements
or financial statement items of the Borrower and its Subsidiaries, such
statements or items on a consolidated basis in accordance with applicable
principles of consolidation under GAAP.
"CONTINGENT OBLIGATION" means, with respect to the Borrower and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Indebtedness or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Indebtedness or other
obligation (whether arising by virtue of partnership arrangements, by agreement
to keep well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement condition or otherwise) or (b) entered into
for the purpose of assuring in any other manner the obligee of such Indebtedness
or other obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part); PROVIDED, that the term
Contingent Obligation shall not include endorsements for collection or deposit
in the ordinary course of business.
"COVERED PERSONS" has the meaning assigned thereto in the definition of
Restricted Payment.
"CREDIT FACILITIES" means the collective reference to the Revolving
Credit Facility, the Acquisition Facility and the L/C Facility.
"DEFAULT" means any of the events specified in SECTION 11.1, which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"DESIGNATED NET PROCEEDS" means 100% of all proceeds in cash or cash
equivalents (including cash proceeds subsequently received in respect of noncash
consideration initially received), net of selling expenses (including reasonable
broker's fees or commissions, reasonable attorneys' and accountants' fees and
expenses incurred in connection therewith, transfer and similar taxes, the
Borrower's good faith estimate of income taxes incurred in connection with the
receipt of such proceeds and appropriate reserves to be provided by the Borrower
or any Subsidiary as a reserve required in accordance with GAAP against any
liabilities associated with such sale, transfer or other disposition and
retained by the Borrower or such Subsidiary after such sale, transfer or
disposition), from any sale, transfer or other disposition (other than the sale
of inventory in the ordinary course) of any asset or assets of the Borrower or
any Subsidiary (including the sale or issuance of any Capital Stock of any
Subsidiary) to any Person in any transaction, transactions or related series of
transactions; PROVIDED, that the first $15,000,000 of such net proceeds received
in any Fiscal Year (the "EXEMPT PROCEEDS") shall not constitute Designated Net
Proceeds; PROVIDED FURTHER, that if the Borrower shall deliver a certificate of
a Responsible Officer to the Administrative Agent promptly following receipt of
any such proceeds in any Fiscal Year in excess of the Exempt Proceeds for such
Fiscal Year certifying that the Borrower intends to use any portion of such
excess proceeds to acquire productive assets in the same line of business as the
assets sold within twelve (12) months of receipt thereof, such portion shall not
constitute Designated Net Proceeds except to the extent not so used within such
twelve (12) month period.
"DESIGNATED NET INSURANCE/CONDEMNATION PROCEEDS" means 100% of all
insurance or condemnation proceeds received in cash or cash equivalents, net of
reasonable costs of proceedings in connection therewith and any settlement in
respect thereof, from any damage, destruction, condemnation or other taking
involving insurance or condemnation proceeds in excess of $100,000 with respect
to any single occurrence; PROVIDED, that the first $2,500,000 of such net
proceeds received in any Fiscal Year (the "EXEMPT INSURANCE/CONDEMNATION
PROCEEDS") shall not constitute Designated Net Insurance/Condemnation Proceeds;
PROVIDED FURTHER, that if the Borrower shall deliver a certificate of a
Responsible Officer to the Administrative Agent promptly following receipt of
any such proceeds in any Fiscal Year in excess of the Exempt
Insurance/Condemnation Proceeds for such Fiscal Year certifying that the
Borrower intends to use any portion of such excess proceeds to restore, modify
or replace the properties or assets in respect of which such insurance or
condemnation proceeds were received within twelve (12) months of such receipt,
such portion shall not constitute Designated Net Insurance/Condemnation Proceeds
except to the extent not so used within such twelve (12) month period.
"DISPUTES" has the meaning set forth in SECTION 13.6(a).
"DISTRIBUTION SHORTFALL" means, at any time, the amount by which (a)
the Minimum Quarterly Distribution for the most recently ended period of four
fiscal quarters exceeds (b) Adjusted Operating Surplus for such period.
"DOLLARS" OR "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"EBITDA" means, with respect to the Borrower and its Subsidiaries on a
Consolidated basis for any period, the Consolidated net income of the Borrower
and its Subsidiaries for such period, computed in accordance with GAAP, PLUS, to
the extent deducted in computing such Consolidated net income and without
duplication, the sum of (a) income tax expense, (b) Interest Expense, (c)
depreciation and amortization expense, (d) extraordinary losses during such
period, and (e) other cash restructuring charges, in an aggregate amount not to
exceed $5,000,000 during the term of the Credit Facilities (including the prior
term of the Original Credit Agreement) MINUS, to the extent added in computing
such Consolidated net income and without duplication, extraordinary gains during
such period; PROVIDED, that (i) for the purposes of determining EBITDA for any
period during which a Permitted Business Acquisition is consummated, EBITDA
shall be adjusted in a manner reasonably satisfactory to the Administrative
Agent to give effect to the consummation of such Permitted Business Acquisition
on a PRO FORMA basis in accordance with GAAP, as if such Permitted Business
Acquisition occurred on the first day of such period and (ii) EBITDA shall
exclude all unrealized gains and losses reported under Financial Accounting
Standards Board Statement No. 133 in connection with forward contracts, futures
contracts or other derivatives or Commodity Hedging Agreements for the future
delivery of propane in accordance with the Borrower's existing commodity hedging
policy.
"ELIGIBLE ASSIGNEE" means, with respect to any assignment of the
rights, interest and obligations of a Lender hereunder, a Person that is at the
time of such assignment (a) a commercial bank organized or licensed under the
laws of the United States or any state thereof, having combined capital and
surplus in excess of $500,000,000, (b) a commercial bank organized under the
laws of any other country that is a member of the Organization of Economic
Cooperation and Development, or a political subdivision of any such country,
having combined capital and surplus in excess of $500,000,000, (c) a finance
company, insurance company or other financial institution which in the ordinary
course of business extends credit of the type extended hereunder and that has
total assets in excess of $1,000,000,000, (d) already a Lender hereunder
(whether as an original party to this Agreement or as the assignee of another
Lender) or an Affiliate or Subsidiary thereof, (e) the successor (whether by
transfer of assets, merger or otherwise) to all or substantially all of the
commercial lending business of the assigning Lender, or (f) any other Person
that has been approved in writing as an Eligible Assignee by the Administrative
Agent and, if no Default or Event of Default exists and is continuing, the
Borrower.
"EMPLOYEE BENEFIT PLAN" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of the
Borrower or any ERISA Affiliate or (b) has at any time within the preceding six
years been maintained for the employees of the Borrower or any current or former
ERISA Affiliate.
"ENVIRONMENTAL AND SAFETY LAWS" means any and all federal, state and
local laws, statutes, ordinances, rules, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities,
relating to the protection of human health (including, but not limited to
employee health and safety) or the environment, including, but not limited to,
requirements pertaining to the manufacture, processing, distribution, use,
treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA AFFILIATE" means any Person who together with the Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"ERISA EVENT" means (i) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to a Pension
Plan; (ii) the adoption of any amendment to a Pension Plan that would require
the provision of security pursuant to Section 401(a)(29) of the Code or Section
307 of ERISA; (iii) the existence with respect to any Pension Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (iv) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Pension Plan; (v) the
incurrence of any liability under Title IV of ERISA with respect to the
termination of any Pension Plan or the withdrawal or partial withdrawal of the
Borrower or any of its ERISA Affiliates from any Pension Plan or Multiemployer
Plan; (vi) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to the intention to terminate any
Pension Plan or Pension Plans or to appoint a trustee to administer any Pension
Plan; (vii) the receipt by the Borrower or any ERISA Affiliate of any notice
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA or the institution of proceedings to
terminate, or the appointment of a trustee with respect to, any Pension Plan by
the PBGC; (viii) the occurrence of a "prohibited transaction" with respect to
which the Borrower or any of its subsidiaries is a "disqualified person" (within
the meaning of Section 4975 of the Code) and with respect to which the Borrower
or any such subsidiary would be liable for the payment of an excise tax and (ix)
any other event or condition which would constitute grounds under Section
4042(a) of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of Eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City.
"EVENT OF DEFAULT" means any of the events specified in SECTION 11.1;
PROVIDED that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"EXEMPT INSURANCE/CONDEMNATION PROCEEDS" has the meaning assigned such
term in the definition of Designated Net Insurance/Condemnation Proceeds.
"EXEMPT PROCEEDS" has the meaning assigned such term in the definition
of Designated Net Proceeds.
"EXTENSIONS OF CREDIT" means, as to any Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Revolving Credit
Loans made by such Lender then outstanding, (b) the aggregate principal amount
of all Liquidity Loans made by such Lender then outstanding, (c) the aggregate
principal amount of all Acquisition Loans made by such Lender then outstanding,
(d) such Lender's Commitment Percentage of the L/C Obligations then outstanding
and (e) such Lender's Commitment Percentage of the Swingline Loans then
outstanding.
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"FEDERAL FUNDS RATE" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" means a daily rate which
is determined, in the opinion of the Administrative Agent, to be the rate at
which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be
the same as the rate for the most immediate preceding Business Day.
"FINANCIAL OFFICER" means, as to any Person, the chief financial
officer, the treasurer or the principal accounting officer of such Person.
"FIRST UNION" means First Union National Bank, a national banking
association, and its successors.
"FISCAL YEAR" means the 52-week fiscal year of the Borrower and its
Subsidiaries ending on the last Saturday in September.
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the Borrower and its Subsidiaries throughout the period indicated and
consistent with the prior financial practice of the Borrower and its
Subsidiaries.
"GENERAL PARTNER" means Suburban Energy Services Group LLC, a Delaware
limited liability company.
"GENERAL PARTNER UNIT" means a unit representing a fractional part of
the General Partner's general partner interest in the Parent (which shall
exclude any limited partner or other interest that the General Partner may have
from time to time in the Parent).
"GOVERNMENTAL APPROVALS" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"GOVERNMENTAL AUTHORITY" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"GUARANTEE" of or by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the "primary obligor")
(excluding endorsements of checks for collection or deposit in the ordinary
course of business) in any manner, whether directly or indirectly, and including
any obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (ii) to purchase property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (iii) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness.
"GUARANTEE AGREEMENT" means the Guarantee Agreement dated as of
November 10, 1999 executed by each Subsidiary of the Borrower (other than any
foreign Subsidiary and Suburban Sales and Service, Inc.) for the benefit of the
Lenders and the Administrative Agent.
"GUARANTEE CONSENT" means the Consent of the Guarantors to this
Agreement dated as of the date hereof executed by each Guarantor for the benefit
of the Lenders and the Administrative Agent.
"GUARANTOR" means each Subsidiary that is party to the Guarantee
Agreement on the Closing Date together with any Subsidiary who becomes a party
to the Guarantee Agreement after the Closing Date in accordance with the terms
of SECTION 8.7; PROVIDED, that Suburban Sales and Service, Inc. shall not be
required to become a Guarantor.
"HEDGING AGREEMENT" means any agreement with respect to an interest
rate swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection with
hedging the interest rate exposure of the Borrower under this Agreement, and any
confirming letter executed pursuant to such hedging agreement, all as amended,
restated or otherwise modified.
"INDEBTEDNESS" means, with respect to any Person, without duplication
(a) all obligations of such Person for borrowed money or with respect to
deposits or advances of any kind (including repurchase obligations), (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments or letters of credit in support of bonds, notes, debentures or
similar instruments, (c) all obligations of such Person upon which interest
charges are customarily paid, (d) all obligations of such Person under any
conditional sale or other title retention agreement relating to property
purchased by such Person, (e) all obligations of such Person issued or assumed
as the deferred purchase price of property or services, (f) all obligations
under Capital Leases of such Person, (g) all obligations of others secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property or assets owned or acquired
by such Person, whether or not the obligations secured thereby have been
assumed, (h) all Guarantees of such Person, (i) all obligations of such Person
with respect to interest rate protection agreements (including without
limitation Hedging Agreements), foreign currency exchange agreements, Commodity
Hedging Agreements or other hedging arrangements (valued at the termination
value thereof computed in accordance with a method approved by the International
Swap Dealers Association and agreed to by such Person in the applicable Hedging
Agreement, if any), (j) all obligations of such Person as an account party in
respect of letters of credit (i) securing Indebtedness (other than letters of
credit obtained in the ordinary course of business and consistent with past
practices) or (ii) obtained for any purpose not in the ordinary course of
business or not consistent with past practices and (k) all obligations of such
Person in respect of bankers' acceptances; PROVIDED that accounts payable to
suppliers incurred in the ordinary course of business and paid in the ordinary
course of business consistent with past practices shall not constitute
Indebtedness.
"INTEREST EXPENSE" means, with respect to any period, the sum of,
without duplication, gross interest expense and capitalized interest of the
Borrower and its Subsidiaries for such period MINUS interest income of the
Borrower and its Subsidiaries for such period, determined on a Consolidated
basis in accordance with GAAP.
"INTEREST PERIOD" has the meaning assigned thereto in SECTION 4.7(b).
"INVESTMENT" means, as applied to any Person, any direct or indirect
purchase or other acquisition by such Person of stock or other securities of any
other Person, or any direct or indirect loan, advance or capital contribution by
such Person to any other Person and any other item which would be classified as
an "investment" on a balance sheet of such Person prepared in accordance with
GAAP, including without limitation any direct or indirect contribution by such
Person of property or assets to a joint venture, partnership or other business
entity in which such Person retains an interest (it being understood that a
direct or indirect purchase or other acquisition by such Person of assets of any
other Person (other than stock or other securities) shall not constitute an
"Investment" for purposes of this Agreement).
"ISP 98" means the International Standby Practices (1998 Revision,
effective January 1, 1999), International Chamber of Commerce Publication No.
590.
"ISSUING LENDER" means First Union, in its capacity as issuer of any
Letter of Credit, or any successor thereto.
"L/C COMMITMENT" means the lesser of (a) Fifteen Million Dollars
($15,000,000) and (b) the Revolving Credit Commitment.
"L/C FACILITY" means the letter of credit facility established pursuant
to Article III.
"L/C OBLIGATIONS" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to SECTION 3.5.
"L/C PARTICIPANTS" means the collective reference to all the Lenders
other than the Issuing Lender.
"LENDER" means each Person executing this Agreement as a Lender
(including, without limitation, the Issuing Lender and the Swingline Lender
unless the context otherwise requires) set forth on the signature pages hereto
and each Person that hereafter becomes a party to this Agreement as a Lender
pursuant to SECTION 13.10.
"LENDER ADDITION AND ACKNOWLEDGMENT AGREEMENT" means each agreement
executed pursuant to SECTION 2.5 by the Borrower and an existing Lender or
Supplemental Lender, as applicable, and acknowledged by the Administrative Agent
and each Guarantor, in the form attached hereto as EXHIBIT I, providing for an
increase in the Acquisition Commitment hereunder, acknowledging that any
Supplemental Lender shall be a party hereto and have the rights and obligations
of a Lender hereunder, and setting forth the Commitment of each Lender.
"LENDERS' PORTION" means, with respect to any Designated Net Proceeds
or any Designated Net Insurance/Condemnation Proceeds, the ratio, expressed as a
percentage, in effect as of noon, Charlotte time, on the date on which such
Designated Net Proceeds or Designated Net Insurance/Condemnation Proceeds, as
applicable, are being applied pursuant to SECTION 4.2(e), of (i) the Aggregate
Commitment to (ii) the sum of (x) the amount referred to in clause (i) and (y)
the aggregate principal amount at such time of the Senior Notes.
"LENDING OFFICE" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Loans.
"LETTERS OF CREDIT" has the meaning assigned thereto in SECTION 3.1.
"LEVERAGE RATIO" means, on any date, the ratio of (a) Total
Indebtedness as of such date to (b) an amount equal to the aggregate amount of
EBITDA of the Borrower and its Subsidiaries for the period of four consecutive
fiscal quarters ended most recently on or prior to such date, determined on a
Consolidated basis in accordance with GAAP.
"LIBOR" means the rate of interest per annum determined on the basis of
the rate for deposits in Dollars in minimum amounts of at least $5,000,000 for a
period equal to the Interest Period selected which appears on the Dow ▇▇▇▇▇
Market Screen 3750 at approximately 11:00 a.m. London time, two (2) Business
Days prior to the first day of the applicable Interest Period (rounded upward,
if necessary, to the nearest one-one hundredth of one percent (1/100%)). If, for
any reason, such rate does not appear on Dow ▇▇▇▇▇ Market Screen 3750, then
"LIBOR" shall be determined by the Administrative Agent to be the arithmetic
average of the rate per annum at which deposits in Dollars in minimum amounts of
at least $5,000,000 would be offered by first class banks in the London
interbank market to the Administrative Agent at approximately 11:00 a.m. London
time, two (2) Business Days prior to the first day 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. Each
calculation by the Administrative Agent of LIBOR shall be conclusive and binding
for all purposes, absent manifest error.
"LIBOR RATE" means 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" means any Loan bearing interest at a rate based upon
the LIBOR Rate as provided in SECTION 4.7(a).
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, hypothecation or encumbrance of any kind in respect
of such asset. For the purposes of this Agreement, a Person shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement relating to such asset.
"LIQUIDITY LOAN" means any Revolving Credit Loan designated as a
liquidity loan pursuant to SECTION 2.3.
"LIQUIDITY RESERVE AMOUNT" means:
(a) from the date hereof through March 30, 2001, (i) the lesser of (A)
Eleven Million, Six Hundred Thousand Dollars ($11,600,000) and (B) Twenty Two
Million Dollars ($22,000,000) LESS the aggregate amount of Distributions
Shortfalls that have occurred from the date of this Agreement through, and
including, the date of determination; and
(b) from and after March 31, 2001, zero;
PROVIDED, that in no event shall the Liquidity Reserve Amount be less
than zero.
"LOAN" means any Revolving Credit Loan, Acquisition Loan, Liquidity
Loan or Swingline Loan made to the Borrower pursuant to Article II, and all such
Loans collectively as the context requires.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes, the
Applications, any Hedging Agreement with any Lender (to the extent such Hedging
Agreement is permitted hereunder), the Guarantee Agreement and each other
document, instrument, certificate and agreement executed and delivered by the
Borrower, its Subsidiaries or their counsel in connection with this Agreement or
otherwise referred to herein or contemplated hereby, all as may be amended,
restated, supplemented or otherwise modified from time to time.
"MANAGEMENT CASH RESERVE" means the cash available to be accelerated in
any quarter by the Parent or the Borrower from the Rabbi Trust in accordance
with Section 9.1(c) of the Compensation Deferral Plan to support the payment by
the Parent of the Minimum Quarterly Distribution for such quarter.
"MATERIAL ADVERSE EFFECT" means (a) a materially adverse effect on the
business, assets, operations, prospects or financial condition of the Business,
the General Partner, the Parent, the Borrower or the Borrower and its
Subsidiaries taken as a whole, (b) any material impairment of the ability of the
Borrower or any Subsidiary to perform any of its Obligations under any Loan
Document or (c) any material impairment of the rights of or benefits available
to the Lenders or the Administrative Agent under any of the Loan Documents.
"MELLON LOAN AGREEMENT" means the Term Loan Agreement, dated May 26,
1999, between Mellon Bank, N.A. and the General Partner, as in effect on the
date hereof.
"MELLON NOTE" means that certain promissory note dated May 26, 1999 in
the original principal amount of $6,000,000 from the Borrower payable to the
order of Mellon Bank, N.A.
"MELLON NOTE DOCUMENTS" means the Mellon Note, the Mellon Note Purchase
Agreement, the Mellon Loan Agreement, and each security document or other
document relating thereto.
"MELLON NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement,
dated May 26, 1999, between the Borrower and Mellon Bank, N.A., as in effect on
the date hereof.
"MINIMUM QUARTERLY DISTRIBUTION" means, with respect to each quarter,
the aggregate amount required by the Parent (a) to pay each holder of Common
Units $0.50 per Common Unit per quarter and (b) to pay the General Partner $0.50
per General Partner Unit per quarter, in each case subject to adjustment in
accordance with the Parent Partnership Agreement.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making, or
is accruing an obligation to make, or has accrued an obligation to make
contributions within the preceding six (6) years.
"NET DISTRIBUTION SHORTFALL" means, at any time, the Distribution
Shortfall as of such date MINUS the Management Cash Reserve as of such date.
"NOTES" means the collective reference to the Revolving Credit Notes,
the Liquidity Notes, the Acquisition Notes and the Swingline Note; "NOTE" means
any of such Notes.
"NOTICE OF ACCOUNT DESIGNATION" has the meaning assigned thereto in
SECTION 4.1(b).
"NOTICE OF BORROWING" has the meaning assigned thereto in SECTION
4.1(a).
"NOTICE OF CONVERSION/CONTINUATION" has the meaning assigned thereto in
SECTION 4.8.
"NOTICE OF PREPAYMENT" has the meaning assigned thereto in SECTION
4.2(c).
"OBLIGATIONS" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
the L/C Obligations, (c) all payment and other obligations owing by the Borrower
to any Lender or the Administrative Agent under any Hedging Agreement to which a
Lender is a party which is permitted under this Agreement and (d) all other fees
and commissions (including attorney's fees), charges, indebtedness, loans,
liabilities, financial accommodations, obligations, covenants and duties owing
by the Borrower or any of its Subsidiaries to the Lenders or the Administrative
Agent, in each case under or in respect of this Agreement, any Note, any Letter
of Credit or any of the other Loan Documents of every kind, nature and
description, direct or indirect, absolute or contingent, due or to become due,
contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any note, and whether or not for the payment of money under or in
respect of this Agreement, any Note, any Letter of Credit or any of the other
Loan Documents.
"OFFICER'S COMPLIANCE CERTIFICATE" has the meaning assigned thereto in
SECTION 7.2.
"ORIGINAL CREDIT AGREEMENT" has the meaning set forth in the Statement
of Purpose.
"OTHER TAXES" has the meaning assigned thereto in SECTION 4.17(b).
"PARENT" means Suburban Propane Partners, L.P., a limited partnership
organized under the laws of the State of Delaware.
"PARENT PARTNERSHIP AGREEMENT" means the Second Amended and Restated
Agreement of Limited Partnership of Suburban Propane Partners, L.P. as in effect
on the date hereof and as it may be amended, supplemented or otherwise modified
from time to time.
"PARENT SIDE LETTER" means that certain side letter agreement by and
between the Parent and the Administrative Agent dated of even date herewith.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"PARTNERSHIP DOCUMENTS" means the Parent Partnership Agreement and the
Borrower Partnership Agreement, in each case as in effect on the date hereof and
as the same may from time to time be amended, supplemented or otherwise modified
in accordance with the terms hereof and thereof.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for employees of the
Borrower or any ERISA Affiliates or (b) has at any time within the preceding six
years been maintained for the employees of the Borrower or any of their current
or former ERISA Affiliates.
"PERMITTED BANKS" has the meaning assigned to such term in SECTION
10.4(c).
"PERMITTED BUSINESS ACQUISITION" means any acquisition of all or
substantially all the assets of, or all the shares or other equity interests in,
a Person or division or line of business of a Person (or any subsequent
investment made in a previously acquired Permitted Business Acquisition) if
immediately after giving effect thereto: (a) no Event of Default or Default or
Senior Note Default shall have occurred and be continuing or would result
therefrom, (b) all transactions related thereto shall be consummated in
accordance with applicable laws, (c) all the Capital Stock of any acquired or
newly formed corporation, partnership, association or other business entity is
owned directly by the Borrower or a domestic Wholly-Owned Subsidiary and such
acquired or newly formed Subsidiary shall have entered into the Guarantee
Agreement, (d) the Borrower and its Subsidiaries shall be in compliance, on a
pro forma basis after giving effect to such acquisition or formation, with the
covenants contained in Article IX recomputed as at the last day of the most
recently ended fiscal quarter of the Borrower and its Subsidiaries as if such
acquisition had occurred on the first day of each relevant period for testing
such compliance, and, in the case of any transaction involving consideration
(whether cash or property, as valued at the time such transaction is
consummated) in excess of $5,000,000, the Borrower shall have delivered to the
Administrative Agent a certificate of a Responsible Officer to such effect,
together with all relevant financial information for such Subsidiary or assets
and calculations demonstrating such compliance, (e) any acquired or newly formed
Subsidiary shall not be liable for any Indebtedness (except for Indebtedness
permitted by SECTION 10.1) and (f) the Required Lenders shall have given their
prior written consent (which consent shall not be unreasonably withheld, taking
into consideration the merits of the acquisition) in the case of (i) any
acquisition outside the business currently conducted by the Borrower involving
consideration (whether cash or property, as valued at the time each investment
is made) in excess of $5,000,000 and (ii) any acquisition if as a result thereof
the aggregate consideration (whether cash or property, as valued at the time
each investment is made) for all acquisitions (net of return of capital of (but
not return on) investments in such acquisitions) would be in excess of
$25,000,000.
"PERSON" means an individual, corporation, limited liability company,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"PRIME RATE" means, at any time, the rate of interest per annum
publicly announced from time to time by First Union 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 First Union 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.
"PROPOSED INCREASED COMMITMENT" shall have the meaning assigned thereto
in Section 2.5.
"RABBI TRUST" means the trust established pursuant to the terms of the
Rabbi Trust Documents.
"RABBI TRUST AGREEMENT" means the Benefits Protection Trust between the
Parent and First Union National Bank, as Trustee thereunder, dated May 26, 1999.
"RABBI TRUST DOCUMENTS" means the Compensation Deferral Plan and the
Rabbi Trust Agreement.
"REFINANCING NOTE AGREEMENT" means one or more indentures or agreements
pursuant to which Refinancing Notes are issued.
"REFINANCING NOTES" means one or more series of notes issued by the
Borrower, the net proceeds of which are used by the Borrower to redeem Senior
Notes.
"REGISTER" has the meaning assigned thereto in SECTION 13.10(d).
"REIMBURSEMENT OBLIGATION" means the obligation of the Borrower to
reimburse the Issuing Lender pursuant to SECTION 3.5 for amounts drawn under
Letters of Credit.
"REQUIRED LENDERS" means, at any date, any combination of Lenders whose
Commitments aggregate at least fifty-one percent (51%) of the Aggregate
Commitment or, if the Credit Facilities have been terminated pursuant to the
terms hereof, any combination of Lenders holding at least fifty-one percent
(51%) of the aggregate Extensions of Credit.
"RESERVE ITEMS" has the meaning set forth in SECTION 2.1(b).
"RESPONSIBLE OFFICER" means, with respect to any Person, any executive
officer or Financial Officer of such Person and any other officer or similar
official thereof responsible for the administration of the obligations of such
Person in respect of this Agreement.
"RESTRICTED PAYMENT" means with respect to the Borrower and each of its
Subsidiaries (the "COVERED PERSONS"), (a) in the case of any Covered Person that
is a partnership, (i) any payment or other distribution, direct or indirect, in
respect of any partnership interest in such Covered Person, except a
distribution payable solely in additional partnership interests in such Covered
Person, and (ii) any payment, direct or indirect, by such Covered Person on
account of the redemption, retirement, purchase or other acquisition of any
partnership interest in such or any other Covered Person, except to the extent
that such payment consists of additional partnership interests in such Covered
Person; (b) in the case of any Covered Person that is a corporation, (i) any
dividend or other distribution, direct or indirect on account of any shares of
any class of stock of such Covered Person then outstanding, except a dividend
payable solely in shares of stock of such Covered Person, and (ii) any payment,
direct or indirect, by such Covered Person on account of the redemption,
retirement, purchase or other acquisition of any shares of any class of stock of
such Covered Person then outstanding, or of any warrants, rights or options to
acquire any such shares, except to the extent that such payment consists of
shares of Capital Stock of such Covered Person; and (c) in the case of any other
Covered Person, any payment analogous to the prepayments referred to in clauses
(a) and (b) above.
"REVOLVING CREDIT COMMITMENT" means (a) as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to the Borrower
hereunder in an aggregate principal amount at any time outstanding not to exceed
the amount so designated opposite such Lender's name on SCHEDULE 1 hereto, as
the same may be reduced or modified at any time or from time to time pursuant to
the terms hereof and (b) as to all Lenders, the aggregate commitment of all
Lenders to make Revolving Credit Loans, as such amount may be increased or
reduced at any time or from time to time pursuant to the terms hereof. The
Revolving Credit Commitment of all Lenders on the Closing Date shall be
Seventy-Five Million Dollars ($75,000,000).
"REVOLVING CREDIT COMMITMENT PERCENTAGE" means, as to any Lender at any
time, the ratio of (a) the amount of the Revolving Credit Commitment of such
Lender to (b) the Revolving Credit Commitment of all Lenders.
"REVOLVING CREDIT FACILITY" means the revolving credit facility
established pursuant to SECTION 2.1(a).
"REVOLVING CREDIT LOAN" means any of the revolving credit loans made by
the Lenders to the Borrower pursuant to SECTION 2.1(a) and all such loans
collectively as the context requires.
"REVOLVING CREDIT NOTES" means the collective reference to the
Revolving Credit Notes made by the Borrower payable to the order of each Lender,
substantially in the form of EXHIBIT A-1 hereto, evidencing the Revolving Credit
Facility, and any amendments and modifications thereto, any substitutes
therefor, and any replacements, restatements, renewals or extension thereof, in
whole or in part; "REVOLVING CREDIT NOTE" means any of such Revolving Credit
Notes.
"SENIOR NOTE AGREEMENT" means, collectively, the note agreements
pursuant to which the Senior Notes were issued, dated as of February 28, 1996,
as amended by the Amendment No. 1 thereto, dated May 13, 1998, and the Amendment
No. 2 thereto, dated March 29, 1999, and as amended from time to time in
accordance with SECTION 10.9.
"SENIOR NOTE DEFAULT" means any payment default or any other event or
condition with respect to the Senior Notes or any Refinancing Note the effect of
which is to cause, or permit the holder or holders of the Senior Notes or any
Refinancing Note or a trustee under any Refinancing Note Agreement (with or
without the giving of notice, the lapse of time or both) to cause the Senior
Notes or any Refinancing Note to become due prior to its stated maturity.
"SENIOR NOTES" means the 7.54% Senior Notes, due 2011, of the Borrower.
"SOLVENT" means, as to the Borrower and its Subsidiaries on a
particular date, that any such Person (a) has capital sufficient to carry on its
business and transactions and all business and transactions in which it is about
to engage and is able to pay its debts as they mature, (b) owns property having
a value, both at fair valuation and at present fair saleable value, greater than
the amount required to pay its probable liabilities (including contingencies),
and (c) does not believe that it will incur debts or liabilities beyond its
ability to pay such debts or liabilities as they mature.
"SUBSIDIARY" means as to any Person, any corporation, partnership,
limited liability company or other entity of which more than fifty percent (50%)
of the outstanding capital stock or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other managers of
such corporation, partnership, limited liability company or other entity is at
the time, directly or indirectly, owned by or the management is otherwise
controlled by such Person (irrespective of whether, at the time, capital stock
or other ownership interests of any other class or classes of such corporation,
partnership, limited liability company or other entity shall have or might have
voting power by reason of the happening of any contingency). Unless otherwise
qualified references to "SUBSIDIARY" or "SUBSIDIARIES" herein shall refer to
those of the Borrower.
"SUPPLEMENTAL LENDER" shall have the meaning assigned thereto in
SECTION 2.5
"SWINGLINE COMMITMENT" means Seven Million Five Hundred Thousand
Dollars ($7,500,000).
"SWINGLINE FACILITY" means the swingline facility established pursuant
to SECTION 2.2.
"SWINGLINE LENDER" means First Union in its capacity as swingline
lender hereunder.
"SWINGLINE LOAN" means the swingline loans made by the Swingline Lender
to the Borrower pursuant to SECTION 2.2, and all such loans collectively as the
context requires.
"SWINGLINE NOTE" means the Swingline Note made by the Borrower payable
to the order of the Swingline Lender, substantially in the form of EXHIBIT A-3
hereto, evidencing the Swingline Loans, and any amendments, supplements and
modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extension thereof, in whole or in part.
"SWINGLINE RATE" means the interest rate applicable to Swingline Loans,
as agreed upon from time to time by the Borrower and the Administrative Agent
pursuant to a written side letter agreement.
"SWINGLINE TERMINATION DATE" means the earlier to occur of (a) the
resignation of First Union as Administrative Agent in accordance with SECTION
12.9 and (b) the Termination Date.
"TAXES" has the meaning assigned thereto in SECTION 4.17(a).
"TERMINATION DATE" has the meaning assigned thereto in SECTION 4.6.
"TOTAL INDEBTEDNESS" means, at any time, all Indebtedness of the
Borrower and its Subsidiaries at such time (other than Indebtedness described
under clauses (i) and (j) of the definition of "Indebtedness"), determined on a
Consolidated basis in accordance with GAAP.
"TRUST RESERVES" has the meaning assigned to such term in SECTION
4.4(b).
"UNIFORM CUSTOMS" means the Uniform Customs and Practice for
Documentary Credits (1994 Revision), effective January, 1994, International
Chamber of Commerce Publication No. 500.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York, as amended or modified from time to time.
"UNITED STATES" means the United States of America.
"WHOLLY-OWNED" means, with respect to a Subsidiary, a Subsidiary all of
the shares of Capital Stock or other ownership interests of which are, directly
or indirectly, owned or controlled by the Borrower and/or one or more of its
Wholly-Owned Subsidiaries.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2 GENERAL. Unless otherwise specified, a reference in this
Agreement to a particular section, subsection, Schedule or Exhibit is a
reference to that section, subsection, Schedule or Exhibit of this Agreement.
Wherever from the context it appears appropriate, each term stated in either the
singular or plural shall include the singular and plural, and pronouns stated in
the masculine, feminine or neuter gender shall include the masculine, the
feminine and the neuter. Any reference herein to "Charlotte time" shall refer to
the applicable time of day in Charlotte, North Carolina. The term "including"
when used in any Loan Document means "including, without limitation," except
where used in the computation of time periods.
SECTION 1.3 OTHER DEFINITIONS AND PROVISIONS.
(a) USE OF CAPITALIZED TERMS. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(b) MISCELLANEOUS. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
THE CREDIT FACILITIES
SECTION 2.1 REVOLVING CREDIT LOANS.
(a) Subject to the terms and conditions (including without limitation
SECTION 4.4) of this Agreement, and in reliance upon the representations and
warranties set forth herein, each Lender severally agrees to make Revolving
Credit Loans to the Borrower from time to time from the Closing Date to, but not
including, the Termination Date as requested by the Borrower in accordance with
the terms of SECTION 4.1; PROVIDED, that (i) the aggregate principal amount of
all outstanding Revolving Credit Loans (after giving effect to any amount
requested) shall not exceed the Revolving Credit Commitment LESS the sum of (A)
all outstanding Swingline Loans and L/C Obligations, (B) the Liquidity Reserve
Amount as of such date and (C) the Blocked Portion as of such date and (ii) the
principal amount of outstanding Revolving Credit Loans from any Lender to the
Borrower shall not at any time exceed such Lender's Revolving Credit Commitment
LESS such Lender's Revolving Credit Commitment Percentage of L/C Obligations and
outstanding Swingline Loans. Each Revolving Credit Loan by a Lender shall be in
a principal amount equal to such Lender's Revolving Credit Commitment Percentage
of the aggregate principal amount of Revolving Credit Loans requested on such
occasion. Subject to the terms and conditions hereof, the Borrower may borrow,
repay and reborrow Revolving Credit Loans hereunder until the Termination Date.
(b) BLOCKED PORTION OF REVOLVING CREDIT COMMITMENTS. The Borrower may
from time to time deliver a certificate of a Financial Officer of the Borrower
to the Administrative Agent designating a portion of the then-available
Revolving Credit Commitments as being unavailable except for the purpose of
funding items ("RESERVE ITEMS") specified in such certificate that would have
been reserved against pursuant to the definition of "Available Cash" but for the
specification of such amounts in such certificate. The aggregate amount of
Revolving Credit Commitments unavailable as a result of the delivery of such
certificates at any time shall be referred to as the "BLOCKED PORTION" in effect
at such time. The Blocked Portion shall be reduced from time to time upon
receipt by the Administrative Agent of a certificate of a Financial Officer of
the Borrower certifying as to (a) the discharge of any portion of any Reserve
Item, (b) the establishment of a cash reserve in respect of any portion of any
Reserve Item, (c) the determination by the Board of Supervisors of the Borrower
that any reserve contemplated by clause (b) of the definition of "Available
Cash" may be reduced because the amount of the original reserve is no longer
necessary or appropriate by reason of a change in the anticipated timing or
amount of the item reserved against or (d) the delivery of a Notice of Borrowing
for a Revolving Credit Loan to be drawn under the Blocked Portion the proceeds
of which shall be used solely for the purpose of discharging any Reserve Item,
each of which reductions shall be in an amount equal to the amount of such
discharged portion, new cash reserve, adjustment to reserves or Revolving Credit
Loan, as applicable. Notwithstanding any other provision of this Agreement, at
no time shall any Revolving Credit Loan be made or any certificate increasing
the Blocked Portion become effective if as a result of the making of such
Revolving Credit Loan or the effectiveness of such increase the aggregate
principal amount of Revolving Credit Loans outstanding at such time would exceed
the difference between the aggregate amount of the Revolving Credit Commitments
in effect at such time and the amount of the Blocked Portion in effect at such
time.
SECTION 2.2 SWINGLINE LOANS.
(a) AVAILABILITY. Subject to the terms and conditions (including
without limitation SECTION 4.4) of this Agreement, the Swingline Lender agrees
to make Swingline Loans to the Borrower from time to time from the Closing Date
through, but not including, the Swingline Termination Date; PROVIDED, that the
aggregate principal amount of all outstanding Swingline Loans (after giving
effect to any amount requested), shall not exceed the lesser of (i) the
Revolving Credit Commitment LESS the sum of (A) all outstanding Revolving Credit
Loans and the L/C Obligations, (B) the Liquidity Reserve Amount as of such date
and (C) the Blocked Portion as of such date; and (ii) the Swingline Commitment.
Each Lender acknowledges that the aggregate principal amount of all outstanding
Swingline Loans made by the Swingline Lender, when taken together with the
aggregate principal amount of all outstanding Revolving Credit Loans made by the
Swingline Lender, may exceed the Swingline Lender's Revolving Credit Commitment.
(b) REFUNDING.
(i) Swingline Loans shall be reimbursed fully by the Lenders
on demand by the Swingline Lender. Such reimbursements shall be made by the
Lenders in accordance with their respective Revolving Credit Commitment
Percentages and shall thereafter be reflected as Revolving Credit Loans of the
Lenders on the books and records of the Administrative Agent; provided that no
Lender shall be required to reimburse any Swingline Loan if, after giving effect
to such reimbursement, the aggregate principal amount of such Lender's Revolving
Credit Loans outstanding would exceed such Lender's Revolving Credit Commitment.
Each Lender shall fund its respective Revolving Credit Commitment Percentage of
Revolving Credit Loans as required to repay Swingline Loans outstanding to the
Swingline Lender upon demand by the Swingline Lender but in no event later than
2:00 p.m. (Charlotte time) on the next succeeding Business Day after such demand
is made. No Lender's obligation to fund its respective Revolving Credit
Commitment Percentage of a Swingline Loan shall be affected by any other
Lender's failure to fund its Revolving Credit Commitment Percentage of a
Swingline Loan, nor shall any Lender's Revolving Credit Commitment Percentage be
increased as a result of any such failure of any other Lender to fund its
Revolving Credit Commitment Percentage of a Swingline Loan.
(ii) The Borrower shall pay to the Swingline Lender on demand
the amount of such Swingline Loans to the extent amounts received from the
Lenders are not sufficient to repay in full the outstanding Swingline Loans
requested or required to be refunded. In addition, the Borrower hereby
authorizes the Administrative Agent to charge any account maintained by the
Borrower with the Swingline Lender (up to the amount available therein) in order
to immediately pay the Swingline Lender the amount of such Swingline Loans to
the extent amounts received from the Lenders are not sufficient to repay in full
the outstanding Swingline Loans requested or required to be refunded. If any
portion of any such amount paid to the Swingline Lender shall be recovered by or
on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise,
the loss of the amount so recovered shall be ratably shared among all the
Lenders in accordance with their respective Revolving Credit Commitment
Percentages (unless the amounts so recovered by or on behalf of the Borrower
pertain to a Swingline Loan extended after the occurrence and during the
continuance of an Event of Default of which the Administrative Agent has
received notice in the manner required pursuant to SECTION 12.5 and which such
Event of Default has not been waived by the Required Lenders or the Lenders, as
applicable).
(iii) Each Lender acknowledges and agrees that its obligation
to refund Swingline Loans in accordance with the terms of this SECTION 2.2 is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, non-satisfaction of the conditions
set forth in Article V. Further, each Lender agrees and acknowledges that if
prior to the refunding of any outstanding Swingline Loans pursuant to this
SECTION 2.2, one of the events described in SECTION 11.1(i) or (j) shall have
occurred, each Lender will, on the date the applicable Revolving Credit Loan
would have been made, purchase an undivided participating interest in the
Swingline Loan to be refunded in an amount equal to its Revolving Credit
Commitment Percentage of the aggregate amount of such Swingline Loan. Each
Lender will immediately transfer to the Swingline Lender, in immediately
available funds, the amount of its participation and upon receipt thereof the
Swingline Lender will deliver to such Lender a certificate evidencing such
participation dated the date of receipt of such funds and for such amount.
Whenever, at any time after the Swingline Lender has received from any Lender
such Lender's participating interest in a Swingline Loan, the Swingline Lender
receives any payment on account thereof, the Swingline Lender will distribute to
such Lender its participating interest in such amount (appropriately adjusted,
in the case of interest payments, to reflect the period of time during which
such Lender's participating interest was outstanding and funded).
SECTION 2.3 LIQUIDITY LOANS. Subject to the terms and conditions of
this Agreement, the Borrower may designate any Revolving Credit Loan at the time
of incurrence thereof as a Liquidity Loan; PROVIDED, that (a) a Distribution
Shortfall exists as of the end of the then most recently ended fiscal quarter;
(b) the Borrower shall have accelerated and obtained the full amount of the
Management Cash Reserve available as of the date of the occurrence of such
Distribution Shortfall; (c) the cumulative aggregate principal amount of all
Liquidity Loans incurred during the life of the Credit Facilities shall not
exceed $22,000,000; (d) the aggregate principal amount of Liquidity Loans
incurred in any fiscal quarter shall not exceed the lesser of (i) the amount of
the Net Distribution Shortfall as of the end of the preceding fiscal quarter and
(ii) $11,600,000 MINUS the relevant Management Cash Reserve; and (e) no
Liquidity Loan may be requested at any time when the Liquidity Reserve Amount is
less than $1.00.
SECTION 2.4 ACQUISITION LOANS. Subject to the terms and conditions
(including without limitation SECTION 4.4) of this Agreement, and in reliance
upon the representations and warranties set forth herein, each Lender severally
agrees to make Acquisition Loans to the Borrower from time to time from the
Closing Date to, but not including, the Termination Date as requested by the
Borrower in accordance with the terms of SECTION 4.1(a); PROVIDED, that (a) the
aggregate principal amount of all outstanding Acquisition Loans (after giving
effect to any amount requested) shall not exceed the Acquisition Commitment and
(b) the principal amount of outstanding Acquisition Loans from any Lender to the
Borrower shall not at any time exceed such Lender's Acquisition Commitment. Each
Acquisition Loan by a Lender shall be in a principal amount equal to such
Lender's Acquisition Commitment Percentage of the aggregate principal amount of
Acquisition Loans requested or required on such occasion. Subject to the terms
and conditions hereof, the Borrower may borrow, repay and reborrow Acquisition
Loans hereunder until the Termination Date.
SECTION 2.5 INCREASE OF ACQUISITION COMMITMENT (a) So long as no
Default or Event of Default shall have occurred and be continuing or be created
thereby, the Borrower shall have the right from time to time, but, unless the
Administrative Agent otherwise agrees, not more than two times in any year, to
request upon not less than thirty (30) days prior written notice to the
Administrative Agent an increase in the Acquisition Commitment; PROVIDED that
each such requested increase shall be in a minimum principal amount of
$10,000,000 and in no event shall the Acquisition Commitment be increased to an
amount greater than $100,000,000. The Administrative Agent shall promptly notify
the Lenders of any such request by the Borrower. Within fifteen (15) Business
Days after such request, each Lender shall notify the Administrative Agent,
whether, in its sole discretion, it is willing to commit to increase its
Acquisition Commitment and the additional amount it is willing to commit (a
"PROPOSED INCREASED COMMITMENT"). The Administrative Agent shall promptly notify
the Borrower and each other Lender of each Lender's decision and shall allocate
the additional Acquisition Commitments among the Lenders based on the ratio of
each Lender's Proposed Increased Commitment, if any, to the aggregate amount of
all Proposed Increased Commitments. Any Lender that does not so notify the
Administrative Agent within such period shall be deemed to have declined to any
such requested additional Acquisition Commitments. If the Lenders are not
willing to commit to the requested additional Acquisition Commitments in the
amount requested by the Borrower, then the Borrower may accept such reduced
amount or, with notice thereof to the other Lenders, seek at its expense
Acquisition Commitments from one or more financial institutions that qualify
under this Credit Agreement as Eligible Assignees (each a "SUPPLEMENTAL LENDER")
to provide the remainder of the requested additional Acquisition Commitment. Any
such Supplemental Lender must be approved by the Administrative Agent in its
reasonable discretion and provide its Acquisition Commitment within forty-five
(45) Business Days after the Borrower's original request.
(b) Any increase in the Acquisition Commitment pursuant to this Section
2.5 shall be accomplished as follows: (i) the Credit Agreement shall be
supplemented (but without any requirement that the consent of the Lenders be
obtained pursuant to Section 13.11) by the delivery to the Administrative Agent
of a Lender Addition and Acknowledgement Agreement executed by the Borrower, the
Lenders who are increasing their Acquisition Commitments (if any) and the
Supplemental Lenders (if any), (ii) the Administrative Agent will prepare an
updated SCHEDULE 1 the Credit Agreement to be attached to the Lender Addition
and Acknowledgment Agreement as an exhibit, and which SCHEDULE 1 shall reflect
an adjustment to each Lender's Acquisition Commitment and Revolving Credit
Commitment based on its aggregate Commitment Percentage after giving effect to
the total increase to the Acquisition Commitment (each Lender hereby agrees that
its Acquisition Commitment and its Revolving Credit Commitment shall be
calculated on such SCHEDULE 1 in an amount equal to the new total Acquisition
Commitment TIMES its adjusted aggregate Commitment Percentage and the existing
total Revolving Credit Commitment TIMES its adjusted aggregate Commitment
Percentage), (iii) the outstanding Acquisition Loans and Revolving Credit Loans
will be reallocated on the effective date of such Lender Addition and
Acknowledgement Agreement among the Lenders in accordance with the instructions
of the Administrative Agent in order to reflect such revised SCHEDULE 1 (and the
Lenders agree to make all payments and adjustments and execute any master
Assignment and Acceptance necessary to effect such reallocation and the Borrower
shall pay any and all costs of the Lenders incurred in connection therewith,
including any amounts required pursuant to SECTION 4.15 in connection with such
reallocation as if such reallocation were a repayment) and (iv) the Borrower
will deliver new Acquisition Notes and Revolving Credit Notes to the Lenders
reflecting the revised Acquisition Commitment and Revolving Credit Commitment
amount of each Lender and, if applicable to the Supplemental Lender or Lenders
reflecting the Acquisition Commitment and Revolving Credit Commitment of such
Supplemental Lender or Lenders.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C COMMITMENT. Subject to the terms and conditions
(including without limitation SECTION 4.4) of this Agreement, the Issuing
Lender, in reliance on the agreements of the other Lenders set forth in SECTION
3.4(a), agrees to issue standby letters of credit ("LETTERS OF CREDIT") for the
account of the Borrower on any Business Day from the Closing Date to, but not
including, the Termination Date in such form as may be approved from time to
time by the Issuing Lender; PROVIDED, that the Issuing Lender shall have no
obligation to issue any Letter of Credit if, after giving effect to such
issuance, (a) the L/C Obligations would exceed the L/C Commitment or (b) the
aggregate principal amount of outstanding Revolving Credit Loans, PLUS the
aggregate principal amount of outstanding Swingline Loans, PLUS the aggregate
amount of L/C Obligations would exceed the Revolving Credit Commitment LESS the
Liquidity Reserve Amount and the Blocked Portion. Each Letter of Credit shall
(i) be denominated in Dollars in a minimum amount of $1,000,000, (ii) be a
standby letter of credit issued to support obligations of the Borrower or any of
its Subsidiaries, contingent or otherwise, incurred in the ordinary course of
business, (iii) have a term of no more than one year, (iv) expire on a date not
later than the Termination Date and that is otherwise satisfactory to the
Issuing Lender and (v) be subject to the Uniform Customs and/or ISP 98, as set
forth in the Application or as determined by the Issuing Lender and, to the
extent not inconsistent therewith, the laws of the State of New York. The
Issuing Lender shall not at any time be obligated to issue any Letter of Credit
hereunder if such issuance would conflict with, or cause the Issuing Lender or
any L/C Participant to exceed any limits imposed by, any Applicable Law.
References herein to "issue" and derivations thereof with respect to Letters of
Credit shall also include extensions or modifications of any existing Letters of
Credit, unless the context otherwise requires.
SECTION 3.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. The
Borrower may from time to time request that the Issuing Lender issue a Letter of
Credit by delivering to the Issuing Lender at the Administrative Agent's Office
an Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
shall process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall, subject to SECTION 3.1 and Article V, promptly
issue the Letter of Credit requested thereby (but in no event shall the Issuing
Lender be required to issue any Letter of Credit earlier than three (3) Business
Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Lender and the Borrower. The Issuing
Lender shall promptly furnish to the Borrower a copy of such Letter of Credit
and promptly notify each Lender of the issuance and upon request by any Lender,
furnish to such Lender a copy of such Letter of Credit and the amount of such
Lender's L/C Participation therein.
SECTION 3.3 COMMISSIONS AND OTHER CHARGES.
(a) The Borrower shall pay to the Administrative Agent, for the account
of the Issuing Lender and the L/C Participants, a letter of credit commission
with respect to each Letter of Credit in an amount equal to the product of (i)
the average daily maximum amount available to be drawn during the relevant
quarter under such Letter of Credit and (ii) the Applicable Margin for LIBOR
Loans (determined on a per annum basis). Such commission shall be payable
quarterly in arrears on the last Business Day of each calendar quarter and on
the Termination Date. The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Lender and the L/C Participants all
commissions received pursuant to this SECTION 3.3(a) in accordance with their
respective Revolving Credit Commitment Percentages.
(b) In addition to the foregoing commission, the Borrower shall pay to
the Administrative Agent, for the account of the Issuing Lender, an issuance fee
with respect to each Letter of Credit in an amount equal to the product of (i)
the face amount of such Letter of Credit and (ii) one eighth of one percent
(0.125%). Such issuance fee shall be payable on the date of issuance of each
Letter of Credit and shall be non-refundable.
(c) In addition to the foregoing fees and commissions, the Borrower
shall pay or reimburse the Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
SECTION 3.4 L/C PARTICIPATIONS.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Revolving Credit
Commitment Percentage in the Issuing Lender's obligations and rights under and
in respect of each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower through a Revolving Credit Loan or otherwise
in accordance with the terms of this Agreement, such L/C Participant shall pay
to the Issuing Lender upon demand at the Issuing Lender's address for notices
specified herein an amount equal to such L/C Participant's Revolving Credit
Commitment Percentage of the amount of such draft, or any part thereof, which is
not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to SECTION 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify each L/C Participant of the amount
and due date of such required payment and such L/C Participant shall pay to the
Issuing Lender the amount specified on the applicable due date. If any such
amount is paid to the Issuing Lender after the date such payment is due, such
L/C Participant shall pay to the Issuing Lender on demand, in addition to such
amount, the product of (i) such amount, TIMES (ii) the daily average Federal
Funds Rate as determined by the Administrative Agent during the period from and
including the date such payment is due to the date on which such payment is
immediately available to the Issuing Lender, TIMES (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. A certificate of the Issuing Lender with respect to
any amounts owing under this SECTION 3.4(b) shall be conclusive in the absence
of manifest error. With respect to payment to the Issuing Lender of the
unreimbursed amounts described in this SECTION 3.4(b), if the L/C Participants
receive notice that any such payment is due (A) prior to 1:00 p.m. (Charlotte
time) on any Business Day, such payment shall be due that Business Day, and (B)
after 1:00 p.m. (Charlotte time) on any Business Day, such payment shall be due
on the following Business Day.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its
Revolving Credit Commitment Percentage of such payment in accordance with this
SECTION 3.4, the Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise, or any payment of
interest on account thereof, the Issuing Lender will distribute to such L/C
Participant its PRO RATA share thereof; PROVIDED, that in the event that any
such payment received by the Issuing Lender shall be required to be returned by
the Issuing Lender, such L/C Participant shall return to the Issuing Lender the
portion thereof previously distributed by the Issuing Lender to it.
SECTION 3.5 REIMBURSEMENT OBLIGATION OF THE BORROWER. In the event
of any drawing under any Letter of Credit, the Borrower agrees to reimburse
(either with the proceeds of a Revolving Credit Loan as provided for in this
SECTION 3.5 or with funds from other sources), in same day funds, the Issuing
Lender on each date on which the Issuing Lender notifies the Borrower of the
date and amount of a draft paid under any Letter of Credit for the amount of (a)
such draft so paid and (b) any amounts referred to in SECTION 3.3(c) incurred by
the Issuing Lender in connection with such payment. Unless the Borrower shall
immediately notify the Issuing Lender that the Borrower intends to reimburse the
Issuing Lender for such drawing from other sources or funds, the Borrower shall
be deemed to have timely given a Notice of Borrowing to the Administrative Agent
requesting that the Lenders make a Revolving Credit Loan bearing interest at the
Base Rate on such date in the amount of (a) such draft so paid and (b) any
amounts referred to in SECTION 3.3(c) incurred by the Issuing Lender in
connection with such payment, and the Lenders shall make a Revolving Credit Loan
bearing interest at the Base Rate in such amount, the proceeds of which shall be
applied to reimburse the Issuing Lender for the amount of the related drawing
and costs and expenses. Each Lender acknowledges and agrees that its obligation
to fund a Revolving Credit Loan in accordance with this SECTION 3.5 to reimburse
the Issuing Lender for any draft paid under a Letter of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, non-satisfaction of the conditions set forth in
SECTION 4.1(a) or Article V. If the Borrower has elected to pay the amount of
such drawing with funds from other sources and shall fail to reimburse the
Issuing Lender as provided above, the unreimbursed amount of such drawing shall
bear interest in the rate which would be payable on any outstanding Base Rate
Loans which were then overdue from the date such amounts become payable (whether
at stated maturity, by acceleration or otherwise) until payment in full.
SECTION 3.6 OBLIGATIONS ABSOLUTE. The Borrower's obligations under
this Article III (including without limitation the Reimbursement Obligation)
shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender or any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees that the Issuing
Lender and the L/C Participants shall not be responsible for, and the Borrower's
Reimbursement Obligation under SECTION 3.5 shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon,
even though such documents shall in fact prove to be invalid, fraudulent or
forged, or any dispute between or among the Borrower and any beneficiary of any
Letter of Credit or any other party to which such Letter of Credit may be
transferred or any claims whatsoever of the Borrower against any beneficiary of
such Letter of Credit or any such transferee. The Issuing Lender shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit, except for errors or omissions caused by the Issuing
Lender's gross negligence or willful misconduct. The Borrower agrees that any
action taken or omitted by the Issuing Lender under or in connection with any
Letter of Credit or the related drafts or documents, if done in the absence of
gross negligence or willful misconduct and in accordance with the standards of
care specified in ISP 98 or the Uniform Customs, as the case may be, and, to the
extent not inconsistent therewith, the UCC, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender or any L/C Participant
to the Borrower.
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1 PROCEDURE FOR ADVANCES OF LOANS.
(a) REQUESTS FOR BORROWING. The Borrower shall give the Administrative
Agent irrevocable prior written notice in the form attached hereto as EXHIBIT B
(a "NOTICE OF BORROWING") not later than 11:00 a.m. (Charlotte time) (i) on the
same Business Day as each Base Rate Loan and each Swingline Loan and (ii) at
least three (3) Business Days before each LIBOR Rate Loan, of its intention to
borrow, specifying (A) the date of such borrowing, which shall be a Business
Day, (B) the amount of such borrowing, which shall be (x) with respect to LIBOR
Rate Loans and Base Rate Loans, in an aggregate principal amount of $3,000,000
or a whole multiple of $500,000 in excess thereof, and (y) with respect to
Swingline Loans in an aggregate principal amount of $500,000 or a whole multiple
of $250,000 in excess thereof, (C) whether such Loan is to be a Revolving Credit
Loan, Swingline Loan, Liquidity Loan or Acquisition Loan, (D) in the case of a
Revolving Credit Loan, Liquidity Loan or Acquisition Loan whether the Loans are
to be LIBOR Rate Loans or Base Rate Loans, and (E) in the case of a LIBOR Rate
Loan, the duration of the Interest Period applicable thereto. A Notice of
Borrowing received after 11:00 a.m. (Charlotte time) shall be deemed received on
the next Business Day. The Administrative Agent shall promptly notify the
Lenders of each Notice of Borrowing.
(b) DISBURSEMENT OF LOANS. Not later than 2:00 p.m. (Charlotte time) on
the proposed borrowing date, (i) each Lender will make available to the
Administrative Agent, for the account of the Borrower, at the office of the
Administrative Agent in funds immediately available to the Administrative Agent,
as applicable, (A) such Lender's Revolving Credit Commitment Percentage of the
Revolving Credit Loans to be made on such borrowing date, and (B) such Lender's
Acquisition Commitment Percentage of the Acquisition Loan to be made on such
borrowing date and (ii) the Swingline Lender will make available to the
Administrative Agent, for the account of the Borrower, at the office of the
Administrative Agent in funds immediately available to the Administrative Agent,
the Swingline Loans to be made to the Borrower on such borrowing date. The
Borrower hereby irrevocably authorizes the Administrative Agent to disburse the
proceeds of each borrowing requested pursuant to this SECTION 4.1 in immediately
available funds by crediting or wiring such proceeds to the deposit account of
the Borrower identified in the most recent notice substantially in the form of
EXHIBIT C hereto (a "NOTICE OF ACCOUNT DESIGNATION") delivered by the Borrower
to the Administrative Agent or may be otherwise agreed upon by the Borrower and
the Administrative Agent from time to time. Subject to SECTION 4.13, the
Administrative Agent shall not be obligated to disburse the portion of the
proceeds of any Revolving Credit Loan, Liquidity Loan or Acquisition Loan
requested pursuant to this SECTION 4.1 to the extent that any Lender has not
made available to the Administrative Agent its Revolving Credit Commitment
Percentage, Liquidity Commitment Percentage or Acquisition Commitment
Percentage, as the case may be, of such Loan. Revolving Credit Loans to be made
for the purpose of refunding Swingline Loans shall be made by the Lenders as
provided in SECTION 2.2(b).
SECTION 4.2 REPAYMENT OF LOANS.
(a) REPAYMENT ON TERMINATION DATE. On the Termination Date, the
Borrower shall repay the outstanding principal amount of (i) all Revolving
Credit Loans, Liquidity Loans and Acquisition Loans in full, and (ii) to the
extent the Swingline Termination Date has not occurred, all Swingline Loans
together, in each case, with all accrued but unpaid interest thereon.
(b) MANDATORY REPAYMENT OF REVOLVING CREDIT LOANS AND ACQUISITION
LOANS. If at any time, as the case may be, (i) the outstanding principal amount
of all Revolving Credit Loans plus the sum of (A) all outstanding Swingline
Loans and L/C Obligations, (B) the Liquidity Reserve Amount as of such date and
(C) the Blocked Portion as of such date exceeds the Revolving Credit Commitment,
the Borrower shall repay immediately upon notice from the Administrative Agent,
by payment to the Administrative Agent for the account of the Lenders, the
aggregate outstanding Revolving Credit Loans, Swingline Loans and L/C
Obligations in an amount equal to such excess with each such repayment applied
FIRST to the principal amount of outstanding Swingline Loans, SECOND to the
principal amount of outstanding Revolving Credit Loans and THIRD, with respect
to any Letters of Credit then outstanding, a payment of cash collateral into a
cash collateral account opened by the Borrower with the Administrative Agent,
for the benefit of the Lenders (such cash collateral to be applied in accordance
with SECTION 11.2(b)), and (ii) the outstanding principal amount of all
Acquisition Loans exceeds the Acquisition Commitment, the Borrower shall repay
immediately upon notice from the Administrative Agent, by payment to the
Administrative Agent for the account of the Lenders, Acquisition Loans in an
amount equal to such excess. Each such repayment shall be accompanied by any
amount required to be paid pursuant to SECTION 4.15.
(c) OPTIONAL REPAYMENTS. The Borrower may at any time and from time to
time repay the Loans, in whole or in part, upon at least three (3) Business
Days' irrevocable notice to the Administrative Agent with respect to LIBOR Rate
Loans and one (1) Business Day irrevocable notice with respect to Base Rate
Loans and Swingline Loans, in the form attached hereto as EXHIBIT D (a "NOTICE
OF PREPAYMENT") specifying the date and amount of repayment and whether the
repayment is of a Revolving Credit Loan or Acquisition Loan, LIBOR Rate Loans,
Base Rate Loans, Swingline Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each; PROVIDED, that any repayment
of Revolving Credit Loans shall be applied first to the repayment of any
outstanding Liquidity Loans and then any remaining amounts shall be applied to
repayment of any Revolving Credit Loans that are not Liquidity Loans. Upon
receipt of such notice, the Administrative Agent shall promptly notify each
Lender. If any such notice is given, the amount specified in such notice shall
be due and payable on the date set forth in such notice. Partial repayments
shall be in an aggregate amount of $3,000,000 or a whole multiple of $500,000 in
excess thereof with respect to LIBOR Rate Loans and Base Rate Loans and $500,000
or a whole multiple of $250,000 in excess thereof with respect to Swingline
Loans. Each such repayment shall be accompanied by any amount required to be
paid pursuant to SECTION 4.15.
(d) MANDATORY REPAYMENT OF REVOLVING CREDIT LOANS. The Borrower shall
apply the proceeds of the Management Cash Reserve received pursuant to the terms
of SECTION 4.4(b) to repay outstanding Liquidity Loans, if any, and then any
remaining amounts shall be applied to repayment of any outstanding Revolving
Credit Loans that are not Liquidity Loans.
(e) MANDATORY REPAYMENT OF ACQUISITION LOANS. The Borrower shall apply
the Lender's Portion of the Designated Net Proceeds and the Designated Net
Insurance/Condemnation Proceeds promptly upon receipt thereof by the Borrower or
any Subsidiary or upon the existence thereof, as applicable, to repay the
Acquisition Loans outstanding at the time of such receipt or existence.
(f) LIMITATION ON REPAYMENT OF LIBOR RATE LOANS. The Borrower may not
repay any LIBOR Rate Loan on any day other than on the last day of the Interest
Period applicable thereto unless such repayment is accompanied by any amount
required to be paid pursuant to SECTION 4.15.
SECTION 4.3 NOTES.
(a) REVOLVING CREDIT NOTES. Each Lender's Revolving Credit Loans and
the obligation of the Borrower to repay such Revolving Credit Loans shall be
evidenced by a separate Revolving Credit Note executed by the Borrower payable
to the order of such Lender representing the Borrower's obligation to pay such
Lender's Revolving Credit Commitment or, if less, the aggregate unpaid principal
amount of all Revolving Credit Loans made and to be made by such Lender to the
Borrower hereunder, plus interest and all other fees, charges and other amounts
due thereon. Each Revolving Credit Note shall be dated the date hereof and shall
bear interest on the unpaid principal amount thereof at the applicable interest
rate per annum specified in SECTION 4.7.
(b) ACQUISITION NOTES. Each Lender's Acquisition Loans and the
obligation of the Borrower to repay such Acquisition Loans shall be evidenced by
an Acquisition Note executed by the Borrower payable to the order of such Lender
representing the Borrowers obligation to pay such Lender's Acquisition Loan
Commitment or, if less, the aggregate unpaid principal amount of all Acquisition
Loans made and to be made by such Lender to the Borrower hereunder, plus
interest and all other fees, charges and other amounts due thereon. Each
Acquisition Note shall be dated the date hereof and shall bear interest on the
unpaid principal amount thereof at the applicable interest rate per annum
specified in SECTION 4.7.
(c) SWINGLINE NOTE. The Swingline Loans and the obligation of the
Borrower to repay such Swingline Loans shall be evidenced by the Swingline Note
executed by the Borrower payable to the order of the Swingline Lender
representing the Borrower's obligation to the Swingline Lender the aggregate
unpaid principal amount of all Swingline Loans made and to be made by the
Swingline Lender to the Borrower hereunder, plus interest and all other fees,
charges and other amounts due thereon. The Swingline Note shall be dated the
date hereof and shall bear interest on the unpaid principal amount thereof at
the applicable Swingline Rate.
SECTION 4.4 LIMITATIONS ON INCURRENCE OF EXTENSIONS OF CREDIT.
Notwithstanding anything else herein to the contrary, the Borrower's ability to
request and incur, and the Lenders' and the Issuing Lender's obligation to make,
Extensions of Credit shall be limited as follows:
(a) SUSPENSION UPON DISTRIBUTION SHORTFALL. Upon the occurrence of any
Distribution Shortfall, the Borrower's right to request, and the Lenders' and
the Issuing Lender's obligation to make, Extensions of Credit under this
Agreement shall be automatically suspended until the Borrower shall have caused
an acceleration of and shall have received the full amount of the Management
Cash Reserve available as of the date of such occurrence.
(b) SUSPENSION UPON EXERCISE OF MELLON PUT RIGHTS. Upon the exercise of
any right under the Mellon Note Purchase Agreement to cause the Borrower to
purchase the Mellon Note, the Borrower's right to request, and the Lenders' and
the Issuing Lender's obligation to make, Extensions of Credit under this
Agreement shall be automatically suspended until the Borrower or the Parent
shall have caused an acceleration of and the Borrower shall have received the
payment of all available accumulated distributions under the Rabbi Trust
Documents as provided in Section 9.1(a) of the Compensation Deferral Plan (the
"TRUST RESERVES") in an amount up to the lesser of (i) the full purchase price
of the Mellon Note, and (ii) the entire amount of the Trust Reserves.
(c) REPAYMENT; LIMITED INCURRENCE DURING CLEANDOWN PERIOD. During each
Fiscal Year, the Borrower shall select a Cleandown Period. On the first day of
each Cleandown Period, the Borrower shall repay the Extensions of Credit then
outstanding to the extent necessary to reduce the total amount of outstanding
Extensions of Credit to an amount not exceeding the sum of (i) $15,000,000 PLUS
(ii) the aggregate principal amount of all outstanding Liquidity Loans PLUS
(iii) the aggregate principal amount of all outstanding Acquisition Loans. For
the duration of each such Cleandown Period, the Borrower shall not request,
create or incur any Extensions of Credit to the extent that the aggregate
principal amount of all outstanding Extensions of Credit (after giving effect to
any amount requested, created or incurred) would exceed the sum of (i)
$15,000,000 PLUS (ii) the aggregate principal amount of all outstanding
Liquidity Loans PLUS (iii) the aggregate principal amount of all outstanding
Acquisition Loans.
SECTION 4.5 PERMANENT REDUCTION OF THE REVOLVING CREDIT COMMITMENT
AND THE ACQUISITION COMMITMENT.
(a) VOLUNTARY REDUCTION. The Borrower shall have the right at any time
and from time to time, upon at least three (3) Business Days prior irrevocable
written notice to the Administrative Agent, to permanently reduce, without
premium or penalty, (i) (A) at any time, the entire Acquisition Commitment or,
(B) if the Liquidity Reserve Amount is less than one dollar ($1.00), the entire
Revolving Credit Commitment or (ii) portions of the (A) Revolving Credit
Commitment to an amount not less than the Liquidity Reserve Amount or (B) the
Acquisition Commitment, from time to time, in each case, in an aggregate
principal amount not less than $2,000,000 or any whole multiple in excess
thereof.
(b) MANDATORY PERMANENT REDUCTION OF ACQUISITION LOAN COMMITMENT. The
Acquisition Commitment shall be automatically and permanently reduced by the
Lenders' Portion of the Designated Net Proceeds and the Designated Net
Insurance/Condemnation Proceeds, promptly upon receipt thereof by the Borrower
or any Subsidiary or upon the existence thereof, as applicable, to the extent
that such amounts are not applied to repay Acquisition Loans pursuant to SECTION
4.2(e); PROVIDED, that no such reduction shall be required to the extent that
such reduction would reduce the Acquisition Commitment below $25,000,000.
(c) REPAYMENT OF EXCESS LOANS. Each permanent reduction permitted or
required pursuant to this SECTION 4.5 and, as applicable, SECTION 4.6 shall be
(i) with respect to outstanding Revolving Credit Loans and L/C Obligations, be
accompanied by a payment of principal sufficient to reduce the aggregate
outstanding Revolving Credit Loans and L/C Obligations, of the Lenders after
such reduction to the Revolving Credit Commitment as so reduced and if the
Revolving Credit Commitment as so reduced is less than the aggregate amount of
all outstanding L/C Obligations, the Borrower shall be required to deposit in a
cash collateral account opened by the Administrative Agent an amount equal to
the aggregate then undrawn and unexpired amount of such L/C Obligations, and
(ii) with respect to Acquisition Loans be accompanied by a payment of principal
sufficient to reduce the aggregate outstanding Acquisition Loans of the Lenders
after such reduction to the Acquisition Commitment as so reduced. Any reduction
of the Revolving Credit Commitment or the Acquisition Commitment, as the case
may be, to zero shall be accompanied by payment of all outstanding Obligations
(and, with respect to a reduction of the Revolving Credit Commitment, the
furnishing of cash collateral satisfactory to the Administrative Agent for all
L/C Obligations) and shall result in the termination of the Revolving Credit
Commitment and the Revolving Credit Facility and the Liquidity Facility, and the
Acquisition Commitment and the Acquisition Facility, as the case may be. Such
cash collateral shall be applied in accordance with SECTION 11.2(b). If the
reduction of the Revolving Credit Commitment or the Acquisition Commitment, as
applicable, requires the repayment of any LIBOR Rate Loan, such repayment shall
be accompanied by any amount required to be paid pursuant to SECTION 4.15.
SECTION 4.6 TERMINATION OF CREDIT FACILITIES. The Credit Facilities
shall terminate and each of the Revolving Credit Commitment and the Acquisition
Commitment shall be automatically reduced to zero on the earliest of (a) May 31,
2003, (b) the date of termination by the Borrower pursuant to SECTION 4.5(a),
and (c) the date of termination by the Administrative Agent on behalf of the
Lenders pursuant to SECTION 11.2(a) (the "TERMINATION DATE").
SECTION 4.7 INTEREST.
(a) INTEREST RATE OPTIONS. Subject to the provisions of this SECTION
4.7, at the election of the Borrower, the aggregate unpaid principal balance of
(i) each Revolving Credit Loan and each Acquisition Loan shall bear interest at
the Base Rate or the LIBOR Rate PLUS the Applicable Margin as set forth below,
and (ii) each Swingline Loan shall bear interest at the Swingline Rate. The
Borrower shall select the rate of interest and Interest Period, if any,
applicable to any LIBOR Rate Loan at the time a Notice of Borrowing is given
pursuant to SECTION 4.1(a) or at the time a Notice of Conversion/Continuation is
given pursuant to SECTION 4.8. Each Loan or portion thereof bearing interest
based on the Base Rate shall be a "BASE RATE LOAN", and each Loan or portion
thereof bearing interest based on the LIBOR Rate shall be a "LIBOR RATE LOAN."
Any Loan or any portion thereof as to which the Borrower has not duly specified
an interest rate as provided herein shall be deemed a Base Rate Loan.
(b) INTEREST PERIODS. In connection with each LIBOR Rate Loan, the
Borrower, by giving notice at the times described in SECTION 4.7(a), shall elect
an interest period (each, an "INTEREST PERIOD") to be applicable to such Loan,
which Interest Period shall be a period of one (1), two (2), three (3), or six
(6) months; PROVIDED that:
(i) the Interest Period shall commence on the date of
advance of or conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall commence on
the date on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; PROVIDED, that if any Interest Period with respect to a
LIBOR Rate Loan would otherwise expire on a day that is not a Business Day but
is a day of the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(iii) any Interest Period with respect to 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 at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the Termination
Date and Interest Periods shall be selected by the Borrower so as to permit the
Borrower to make mandatory reductions of the Acquisition Commitment pursuant to
SECTION 4.4(c), without payment of any amounts pursuant to SECTION 4.15; and
(v) there shall be no more than ten (10) Interest Periods
outstanding at any time.
(c) APPLICABLE MARGIN. The Applicable Margin provided for in SECTION
4.7(a) with respect to the Loans (the "APPLICABLE MARGIN") shall be determined
by reference to the Leverage Ratio as of the end of the fiscal quarter
immediately preceding the delivery of the applicable Officer's Compliance
Certificate as follows:
------- -------------------------------------- ------------ ----------- ------------
Level Leverage Ratio LIBOR Margin Base Margin Facility Fee
(%) (%) (%)
======= ====================================== ============ =========== ============
I Greater than or equal to 4.50 to 1.00 2.00 1.00 0.500
------- -------------------------------------- ------------ ----------- ------------
II Greater than or equal to 3.75 to 1.75 0.75 0.500
1.00, but less than 4.50 to 1.00
------- -------------------------------------- ------------ ----------- ------------
III Greater than or equal to 3.00 to 1.50 0.50 0.375
1.00, but less than 3.75 to 1.00
------- -------------------------------------- ------------ ----------- ------------
IV Less than 3.00 to 1.00 1.25 0.25 0.375
------- -------------------------------------- ------------ ----------- ------------
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent on the third (3rd) Business Day after receipt by the
Administrative Agent of quarterly financial statements for the Borrower and its
Subsidiaries and the accompanying Officer's Compliance Certificate setting forth
the Leverage Ratio of the Borrower and its Subsidiaries as of the most recent
fiscal quarter end. Subject to SECTION 4.7(d), in the event the Borrower fails
to deliver such financial statements and certificate within the time required by
SECTION 7.2, the Applicable Margin shall be the highest Applicable Margin set
forth above until the delivery of such financial statements and certificate.
(d) DEFAULT RATE. Subject to SECTION 11.3, upon the occurrence and
during the continuance of an Event of Default, (i) the Borrower shall no longer
have the option to request LIBOR Rate Loans or Swingline Loans, (ii) all
outstanding LIBOR Rate Loans shall bear interest at a rate per annum two percent
(2%) in excess of the rate then applicable to LIBOR Rate Loans until the end of
the applicable Interest Period and thereafter at a rate equal to two percent
(2%) in excess of the rate then applicable to Base Rate Loans, (iii) all
outstanding Swingline Loans shall bear interest at a rate per annum equal to two
percent (2%) in excess of the rate then applicable to Swingline Loans and (iv)
all outstanding Base Rate Loans shall bear interest at a rate per annum equal to
two percent (2%) in excess of the rate then applicable to Base Rate Loans.
Interest shall continue to accrue on the Notes after the filing by or against
the Borrower of any petition seeking any relief in bankruptcy or under any act
or law pertaining to insolvency or debtor relief, whether state, federal or
foreign.
(e) INTEREST PAYMENT AND COMPUTATION. Interest on each Base Rate Loan
shall be payable in arrears on the last Business Day of each calendar quarter
commencing March 31, 2001; interest on each LIBOR Rate Loan shall be payable on
the last day of each Interest Period applicable thereto, and if such Interest
Period extends over three (3) months, at the end of each three (3) month
interval during such Interest Period. All interest rates, fees and commissions
provided hereunder shall be computed on the basis of a 360-day year and assessed
for the actual number of days elapsed.
(f) MAXIMUM RATE. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option promptly refund to the Borrower any interest received by Lenders
in excess of the maximum lawful rate or shall apply such excess to the principal
balance of the Obligations. It is the intent hereof that the Borrower not pay or
contract to pay, and that neither the Administrative Agent nor any Lender
receive or contract to receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may be paid by the Borrower under Applicable
Law.
SECTION 4.8 NOTICE AND MANNER OF CONVERSION OR CONTINUATION OF
LOANS. Provided that no Event of Default has occurred and is then continuing,
the Borrower shall have the option to (a) convert at any time all or any portion
of its outstanding Base Rate Loans in a principal amount equal to $3,000,000 or
any whole multiple of $500,000 in excess thereof into one or more LIBOR Rate
Loans or (b) upon the expiration of any Interest Period, (i) convert all or any
part of its outstanding LIBOR Rate Loans in a principal amount equal to
$3,000,000 or a whole multiple of $500,000 in excess thereof into Base Rate
Loans or (ii) continue such LIBOR Rate Loans as LIBOR Rate Loans. Whenever the
Borrower desires to convert or continue Loans as provided above, the Borrower
shall give the Administrative Agent irrevocable prior written notice in the form
attached as Exhibit E (a "Notice of Conversion/ Continuation") not later than
11:00 a.m. (Charlotte time) three (3) Business Days before the day on which a
proposed conversion or continuation of such Loan is to be effective specifying
(A) the Loans to be converted or continued, and, in the case of any LIBOR Rate
Loan to be converted or continued, the last day of the Interest Period therefor,
(B) the effective date of such conversion or continuation (which shall be a
Business Day), (C) the principal amount of such Loans to be converted or
continued, and (D) the Interest Period to be applicable to such converted or
continued LIBOR Rate Loan. The Administrative Agent shall promptly notify the
Lenders of such Notice of Conversion/Continuation.
SECTION 4.9 FEES.
(a) FACILITY FEES. The Borrower shall pay to the Administrative Agent,
for the account of the Lenders, a non-refundable facility fee at a rate per
annum equal to the percentage set forth in Section 4.7(c) times the Aggregate
Commitment, regardless of usage. The facility fee shall be payable in arrears on
the last Business Day of each calendar quarter during the term of this Agreement
commencing March 31, 2001 and on the Termination Date. Such facility fee shall
be distributed by the Administrative Agent to the Lenders pro rata in accordance
with the Lenders' respective Commitment Percentages.
(b) ADMINISTRATIVE AGENT'S AND OTHER FEES. To compensate the
Administrative Agent for structuring and syndicating the Loans and for its
obligations hereunder, the Borrower agrees to pay to the Administrative Agent,
for its account, the fees set forth in the separate fee letter agreement
executed by the Borrower and the Administrative Agent dated November 16, 2000.
SECTION 4.10 MANNER OF PAYMENT. Each payment by the Borrower on
account of the principal of or interest on the Loans or of any fee, commission
or other amounts payable to the Lenders under this Agreement or any Note shall
be made not later than 1:00 p.m. (Charlotte time) on the date specified for
payment under this Agreement to the Administrative Agent at the Administrative
Agent's Office for the account of the Lenders (other than as set forth below)
PRO RATA in accordance with their respective applicable Commitment Percentages,
in Dollars, in immediately available funds and shall be made without any
set-off, counterclaim or deduction whatsoever. Any payment received after such
time but before 2:00 p.m. (Charlotte time) on such day shall be deemed a payment
on such date for the purposes of SECTION 11.1, but for all other purposes shall
be deemed to have been made on the next succeeding Business Day. Any payment
received after 2:00 p.m. (Charlotte time) shall be deemed to have been made on
the next succeeding Business Day for all purposes. Upon receipt by the
Administrative Agent of each such payment, the Administrative Agent shall
distribute to each Lender at its address for notices set forth herein its PRO
RATA share of such payment in accordance with such Lender's applicable
Commitment Percentage and shall wire advice of the amount of such credit to each
Lender. Each payment to the Administrative Agent of Administrative Agent's fees
or expenses shall be made for the account of the Administrative Agent and any
amount payable to any Lender under SECTIONS 4.14, 4.15, 4.16, 4.17 or 13.2 shall
be paid to the Administrative Agent for the account of the applicable Lender.
Subject to SECTION 4.7(b)(ii), if any payment under this Agreement or any Note
shall be specified to be made upon a day which is not a Business Day, it shall
be made on the next succeeding day which is a Business Day and such extension of
time shall in such case be included in computing any interest if payable along
with such payment.
SECTION 4.11 CREDITING OF PAYMENTS AND PROCEEDS. In the event that
the Borrower shall fail to pay any of the Obligations when due and the
Obligations have been accelerated pursuant to SECTION 11.2, all payments
received by the Lenders upon the Notes and the other Obligations and all net
proceeds from the enforcement of the Obligations shall be applied first to all
expenses then due and payable by the Borrower hereunder, then to all indemnity
obligations then due and payable by the Borrower hereunder, then to all
Administrative Agent's fees then due and payable, then to all fees and
commissions then due and payable, then to accrued and unpaid interest on the
Swingline Note to the Swingline Lender, then to the unpaid principal amount
outstanding under the Swingline Note to the Swingline Lender, then to accrued
and unpaid interest on the Revolving Credit Notes (applied first to Liquidity
Loans and then to other Revolving Credit Loans), Acquisition Notes and the
Reimbursement Obligation (pro rata in accordance with all such amounts due),
then to the principal amount of the Revolving Credit Notes, the Acquisition
Notes and Reimbursement Obligation (pro rata in accordance with all such amounts
due) and then to the cash collateral account described in SECTION 11.2(b) to the
extent of any L/C Obligations then outstanding, in that order.
SECTION 4.12 ADJUSTMENTS. If any Lender (a "BENEFITTED LENDER") shall
at any time receive any payment of all or part of the Obligations owing to it,
or interest thereon, or if any Lender shall at any time receive any collateral
in respect to the Obligations owing to it (whether voluntarily or involuntarily,
by set-off or otherwise) in a greater proportion than any such payment to and
collateral received by any other Lender, if any, in respect of the Obligations
owing to such other Lender, or interest thereon, such Benefitted Lender shall
purchase for cash from the other Lenders such portion of each such other
Lender's Extensions of Credit, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; PROVIDED, that if all
or any portion of such excess payment or benefits is thereafter recovered from
such Benefitted 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
Extensions of Credit may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
SECTION 4.13 NATURE OF OBLIGATIONS OF LENDERS REGARDING EXTENSIONS OF
CREDIT; ASSUMPTION BY THE ADMINISTRATIVE AGENT. The obligations of the Lenders
under this Agreement to make the Loans and issue or participate in Letters of
Credit are several and are not joint or joint and several. Unless the
Administrative Agent shall have received notice from a Lender prior to a
proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
accordance with SECTION 4.1(b) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to the product of
(a) the amount not made available by such Lender in accordance with the terms
hereof, TIMES (b) the daily average Federal Funds Rate during such period as
determined by the Administrative Agent, TIMES (c) a fraction the numerator of
which is the number of days that elapse from and including such borrowing date
to the date on which such amount not made available by such Lender in accordance
with the terms hereof shall have become immediately available to the
Administrative Agent and the denominator of which is 360. A certificate of the
Administrative Agent with respect to any amounts owing under this SECTION 4.13
shall be conclusive, absent manifest error. If such Lender's Commitment
Percentage of such borrowing is not made available to the Administrative Agent
by such Lender within three (3) Business Days of such borrowing date, the
Administrative Agent shall be entitled to recover such amount made available by
the Administrative Agent with interest thereon at the rate per annum applicable
to Base Rate Loans hereunder, on demand, from the Borrower. The failure of any
Lender to make available its Commitment Percentage of any Loan requested by the
Borrower shall not relieve it or any other Lender of its obligation, if any,
hereunder to make its Commitment Percentage of such Loan available on such
borrowing date, but no Lender shall be responsible for the failure of any other
Lender to make its Commitment Percentage of such Loan available on the borrowing
date.
SECTION 4.14 CHANGED CIRCUMSTANCES.
(a) CIRCUMSTANCES AFFECTING LIBOR RATE AVAILABILITY. If with respect to
any Interest Period the Administrative Agent or any Lender (after consultation
with Administrative Agent) shall determine that, by reason of circumstances
affecting the foreign exchange and interbank markets generally, deposits in
eurodollars, in the applicable amounts are not being quoted via Telerate Page
3750 or offered to the Administrative Agent or such Lender for such Interest
Period, then the Administrative Agent shall forthwith give notice thereof to the
Borrower. Thereafter, until the Administrative Agent notifies the Borrower that
such circumstances no longer exist, the obligation of the Lenders to make LIBOR
Rate Loans and the right of the Borrower to convert any Loan to or continue any
Loan as a LIBOR Rate Loan shall be suspended, and the Borrower shall repay in
full (or cause to be repaid in full) the then outstanding principal amount of
each such LIBOR Rate Loans together with accrued interest thereon, on the last
day of the then current Interest Period applicable to such LIBOR Rate Loan or
convert the then outstanding principal amount of each such LIBOR Rate Loan to a
Base Rate Loan as of the last day of such Interest Period.
(b) LAWS AFFECTING LIBOR RATE AVAILABILITY. If, after the date hereof,
the introduction of, or any change in, any Applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any of their respective Lending
Offices) with any request or directive (whether or not having the force of law)
of any such Authority, central bank or comparable agency, shall make it unlawful
or impossible for any of the Lenders (or any of their respective Lending
Offices) to honor its obligations hereunder to make or maintain any LIBOR Rate
Loan, such Lender shall promptly give notice thereof to the Administrative Agent
and the Administrative Agent shall promptly give notice to the Borrower and the
other Lenders. Thereafter, until the Administrative Agent notifies the Borrower
that such circumstances no longer exist, (i) the obligations of the Lenders to
make LIBOR Rate Loans and the right of the Borrower to convert any Loan or
continue any Loan as a LIBOR Rate Loan shall be suspended and thereafter the
Borrower may select only Base Rate Loans hereunder, and (ii) if any of the
Lenders may not lawfully continue to maintain a LIBOR Rate Loan to the end of
the then current Interest Period applicable thereto as a LIBOR Rate Loan, the
applicable LIBOR Rate Loan shall immediately be converted to a Base Rate Loan
for the remainder of such Interest Period.
(c) INCREASED COSTS. If, after the date hereof, the introduction of, or
any change in, any Applicable Law, or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of such Authority, central
bank or comparable agency;
(i) shall subject any of the Lenders (or any of their
respective Lending Offices) to any tax, duty or other charge with respect to any
Note, Letter of Credit or Application or shall change the basis of taxation of
payments to any of the Lenders (or any of their respective Lending Offices) of
the principal of or interest on any Note, Letter of Credit or Application or any
other amounts due under this Agreement in respect thereof (except for changes in
the rate of tax on the overall net income of any of the Lenders or any of their
respective Lending Offices imposed by the jurisdiction in which such Lender is
organized or is or should be qualified to do business or such Lending Office is
located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System), special deposit, insurance or capital or similar
requirement against assets of, deposits with or for the account of, or credit
extended by any of the Lenders (or any of their respective Lending Offices) or
shall impose on any of the Lenders (or any of their respective Lending Offices)
or the foreign exchange and interbank markets any other condition affecting any
Note;
and the result of any of the foregoing is to increase the costs to any of the
Lenders of maintaining any LIBOR Rate Loan or issuing or participating in
Letters of Credit or to reduce the yield or amount of any sum received or
receivable by any of the Lenders under this Agreement or under the Notes in
respect of a LIBOR Rate Loan or Letter of Credit or Application, then such
Lender shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify the Borrower of such fact and demand compensation
therefor and, within ten (10) Business Days after such notice by the
Administrative Agent, the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or Lenders for such increased
cost or reduction. The Administrative Agent will promptly notify the Borrower of
any event of which it has knowledge which will entitle such Lender to
compensation pursuant to this SECTION 4.14(c); PROVIDED, that the Administrative
Agent shall incur no liability whatsoever to the Lenders or the Borrower in the
event it fails to do so. The amount of such compensation shall be determined, in
the applicable Lender's sole discretion, based upon the assumption that such
Lender funded its Commitment Percentage of the LIBOR Rate Loans in the London
interbank market and using any reasonable attribution or averaging methods which
such Lender deems appropriate and practical. A certificate of such Lender
setting forth the basis for determining such amount or amounts necessary to
compensate such Lender shall be forwarded to the Borrower through the
Administrative Agent and shall be conclusively presumed to be correct save for
manifest error.
SECTION 4.15 INDEMNITY. The Borrower hereby indemnifies each of the
Lenders against any loss or expense which may arise or be attributable to each
Lender's obtaining, liquidating or employing deposits or other funds acquired to
effect, fund or maintain any Loan (a) as a consequence of any failure by the
Borrower to make any payment when due of any amount due hereunder in connection
with a LIBOR Rate Loan, (b) due to any failure of the Borrower to borrow on a
date specified therefor in a Notice of Borrowing or Notice of
Continuation/Conversion or (c) due to any payment, prepayment or conversion of
any LIBOR Rate Loan on a date other than the last day of the Interest Period
therefor. The amount of such loss or expense shall be determined, in the
applicable Lender's sole discretion, based upon the assumption that such Lender
funded its Commitment Percentage of the LIBOR Rate Loans in the London interbank
market and using any reasonable attribution or averaging methods which such
Lender deems appropriate and practical. A certificate of such Lender setting
forth the basis for determining such amount or amounts necessary to compensate
such Lender shall be forwarded to the Borrower through the Administrative Agent
and shall be conclusively presumed to be correct save for manifest error.
SECTION 4.16 CAPITAL REQUIREMENTS. If either (a) the introduction of,
or any change in, or in the interpretation of, any Applicable Law or (b)
compliance with any guideline or request from any central bank or comparable
agency or other Governmental Authority (whether or not having the force of law),
has or would have the effect of reducing the rate of return on the capital of,
or has affected or would affect the amount of capital required to be maintained
by, any Lender or any corporation controlling such Lender as a consequence of,
or with reference to the Commitments and other commitments of this type, below
the rate which the Lender or such other corporation could have achieved but for
such introduction, change or compliance, then within five (5) Business Days
after written demand by any such Lender, the Borrower shall pay to such Lender
from time to time as specified by such Lender additional amounts sufficient to
compensate such Lender or other corporation for such reduction. A certificate as
to such amounts submitted to the Borrower and the Administrative Agent by such
Lender, shall, in the absence of manifest error, be presumed to be correct and
binding for all purposes.
SECTION 4.17 TAXES.
(a) PAYMENTS FREE AND CLEAR. Any and all payments by the Borrower
hereunder or under the Notes or the Letters of Credit shall be made free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholding, and all liabilities with respect
thereto excluding, (i) in the case of each Lender and the Administrative Agent,
income and franchise taxes imposed by the jurisdiction under the laws of which
such Lender or the Administrative Agent (as the case may be) is organized or is
or should be qualified to do business or any political subdivision thereof and
(ii) in the case of each Lender, income and franchise taxes imposed by the
jurisdiction of such Lender's Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "TAXES"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note or Letter of Credit to any Lender or the
Administrative Agent, (A) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this SECTION 4.17) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the amount
such party would have received had no such deductions been made, (B) the
Borrower shall make such deductions, (C) the Borrower shall pay the full amount
deducted to the relevant taxing authority or other authority in accordance with
applicable law, and (D) the Borrower shall deliver to the Administrative Agent
evidence of such payment to the relevant taxing authority or other authority in
the manner provided in SECTION 4.17(d).
(b) STAMP AND OTHER TAXES. In addition, the Borrower shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes, levies of the United
States or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the Letters of Credit, the other Loan Documents, or the perfection of any
rights or security interest in respect thereto (hereinafter referred to as
"OTHER TAXES").
(c) INDEMNITY. The Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this SECTION 4.17) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be made within thirty (30) days from the date such
Lender or the Administrative Agent (as the case may be) makes written demand
therefor.
(d) EVIDENCE OF PAYMENT. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent, at its address referred to in SECTION 13.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
(e) DELIVERY OF TAX FORMS. Each Lender organized under the laws of a
jurisdiction other than the United States or any state thereof shall deliver to
the Borrower, with a copy to the Administrative Agent, on the Closing Date or
concurrently with the delivery of the relevant Assignment and Acceptance, as
applicable, (i) two United States Internal Revenue Service Forms W-8ECI or Forms
W-8BEN, as applicable (or successor forms) properly completed and certifying in
each case that such Lender is entitled to a complete exemption from withholding
or deduction for or on account of any United States federal income taxes, and
(ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable form,
as the case may be, to establish an exemption from United States backup
withholding taxes. Each such Lender further agrees to deliver to the Borrower,
with a copy to the Administrative Agent, a Form W-8ECI or W-8BEN and Form W-8 or
W-9, or successor applicable forms or manner of certification, as the case may
be, on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower, certifying in the case of a Form
W-8ECI or W-8BEN that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes (unless in any such case an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders such forms inapplicable or
the exemption to which such forms relate unavailable and such Lender notifies
the Borrower and the Administrative Agent that it is not entitled to receive
payments without deduction or withholding of United States federal income taxes)
and, in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax. The Borrower shall not be required to pay any
additional amount to any non-U.S. Lender in respect of United States withholding
tax pursuant to SECTION 4.17(a) to the extent that the obligation to withhold
such tax existed at the time such non-U.S. Lender became a Lender hereunder,
unless such obligation would not have arisen but for a failure by such non-U.S.
Lender to deliver the documents referred to in this SECTION 4.17(e).
(f) SURVIVAL. Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this SECTION 4.17 shall survive the payment in full of the
Obligations and the termination of the Commitments.
SECTION 4.18 DUTY TO MITIGATE; ASSIGNMENT OF COMMITMENTS UNDER
CERTAIN CIRCUMSTANCES.
(a) Any Lender (or Eligible Assignee) claiming any additional amounts
payable pursuant to SECTION 4.14, 4.15 or 4.17 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document requested by the Borrower or to change the jurisdiction of its
applicable lending office if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which may
thereafter accrue or avoid the circumstances giving rise to such exercise and
would not, in the sole determination of such Lender (or Eligible Assignee), be
otherwise disadvantageous to such Lender (or Eligible Assignee).
(b) In the event that any Lender shall have delivered a notice pursuant
to SECTION 4.14 or 4.16 or the Borrower shall be required to make additional
payments to any Lender under SECTION 4.17, the Borrower shall have the right, at
its own expense (which shall include the assignment fee referred to in SECTION
13.9), upon notice to such Lender and the Administrative Agent, to require such
Lender to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in SECTION 13.9) all interests, rights and
obligations contained hereunder to another financial institution (including any
other Lender) approved by the Administrative Agent (which approval shall not be
unreasonably withheld) which shall assume such obligations; PROVIDED that (i) no
such assignment shall conflict with any law, rule or regulation or order of any
Governmental Authority and (ii) the assignee or the Borrower, as the case may
be, shall pay to the affected Lender in immediately available funds on the date
of such assignment the principal of and interest accrued to the date of payment
on, or transfer of, the Loans made by it hereunder and all other amounts accrued
for its account or owed to it hereunder (including the additional amounts
asserted and payable pursuant to SECTION 4.14, 4.16 or 4.17, if any).
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1 CLOSING. The closing shall take place at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., Charlotte, North Carolina at 9:00
a.m. on January 29, 2001, or on such other date and at such other place as the
parties hereto shall mutually agree.
SECTION 5.2 CONDITIONS TO CLOSING AND INITIAL EXTENSIONS OF CREDIT.
The obligations of the Lenders to close this Agreement and to make the initial
Loan and issue the initial Letters of Credit are subject to the satisfaction of
each of the following conditions:
(a) EXECUTED LOAN DOCUMENTS. This Agreement, the Notes, the Guarantee
Agreement and any other Loan Documents shall have been duly authorized, executed
and delivered to the Administrative Agent by the parties thereto, shall be in
full force and effect and no default shall exist thereunder, and the Borrower
shall have delivered original counterparts thereof to the Administrative Agent.
(b) CLOSING CERTIFICATES; ETC.
(i) OFFICER'S CERTIFICATE OF THE BORROWER. The
Administrative Agent shall have received a certificate from the chief executive
officer or chief financial officer of the Borrower, in form and substance
satisfactory to the Administrative Agent, to the effect that all representations
and warranties of the Borrower contained in this Agreement and the other Loan
Documents are true, correct and complete; that the Borrower is not in violation
of any of the covenants contained in this Agreement and the other Loan
Documents; that, after giving effect to the transactions contemplated by this
Agreement, no Default or Event of Default has occurred and is continuing; and
that the Borrower has satisfied each of the closing conditions.
(ii) PARTNERSHIP DOCUMENTS; SECRETARY'S CERTIFICATES. The
Administrative Agent shall have received (A) a certificate of the Secretary or
Assistant Secretary of the Borrower and each Guarantor dated the Closing Date
and certifying with respect to the Borrower and each Guarantor (1) that attached
thereto is a true and complete copy of the organizational documents and all
amendments thereto of each of them, certified as of a recent date by the
appropriate Governmental Authority in its jurisdiction of organization, (2) that
attached thereto is a true and complete copy of the partnership agreement,
by-laws or equivalent document of each of them in effect on the Closing Date and
at all times since a date prior to the date of the resolutions described in
clause (3) below, (3) that attached thereto is a true and complete copy of
resolutions duly adopted by the respective governing boards of each of them
authorizing, as applicable, the execution, delivery and performance of the Loan
Documents to which it is party and, in the case of the Borrower, the borrowings
hereunder, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (4) that the organizational documents
of each of them have not been amended since the date of the last amendment
thereto shown on the certificate of good standing attached thereto and (5) as to
the incumbency and specimen signature of each officer executing any Loan
Document, Partnership Document or any other document delivered in connection
herewith on its behalf; and (B) a certificate of another officer as to the
incumbency and specimen signature of such Secretary or Assistant Secretary
executing the certificate pursuant to (A) above; PROVIDED that with respect to
items (A)(1) and (A)(2) above, the Borrower and each Guarantor shall not be
required to deliver the documents noted therein if the Borrower or such
Guarantor certifies that the organizational documents of the Borrower or such
Guarantor and all amendments thereto and the partnership agreement, by-laws or
equivalent document of the Borrower and such Guarantor and all amendments
thereto which, in each case, were delivered to the Administrative Agent in
connection with the Original Credit Agreement have not been repealed, revoked,
rescinded or further amended in any respect and that each remains in full force
and effect as of the Closing Date.
(iii) CERTIFICATES OF GOOD STANDING. The Administrative Agent
shall have received long-form certificates as of a recent date of the good
standing of the Borrower and each Subsidiary under the laws of their respective
jurisdictions of organization and a certificate of the relevant taxing
authorities of such jurisdictions certifying that such Person has filed required
tax returns and owes no delinquent taxes.
(iv) OPINIONS OF COUNSEL. The Administrative Agent shall have
received favorable opinions of counsel to the Borrower addressed to the
Administrative Agent and the Lenders with respect to the Borrower, the
Guarantors, the Loan Documents and such other matters as the Lenders shall
request.
(v) TAX FORMS. The Administrative Agent shall have received
copies of the United States Internal Revenue Service forms required by SECTION
4.17(e).
(vi) INSURANCE CERTIFICATE. The Administrative Agent shall
have received a detailed schedule of the Borrower's insurance then in effect,
stating the names of the insurance companies, the amounts and rates of the
insurance, the dates of the expiration thereof and the properties and risks
covered thereby.
(c) CONSENTS; DEFAULTS.
(i) GOVERNMENTAL AND THIRD PARTY APPROVALS. All necessary
approvals, authorizations and consents, if any be required, of any Person,
including, without limitation, board approvals of the Parent and the General
Partner, as applicable, and of all Governmental Authorities and courts having
jurisdiction with respect to the transactions contemplated by this Agreement and
the other Loan Documents shall have been obtained.
(ii) NO INJUNCTION, ETC. No action, proceeding,
investigation, regulation or legislation shall have been instituted, threatened
or proposed before any Governmental Authority to enjoin, restrain, or prohibit,
or to obtain substantial damages in respect of, or which is related to or arises
out of this Agreement or the other Loan Documents or the consummation of the
transactions contemplated hereby or thereby, or which, in the Administrative
Agent's discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement and such other Loan Documents.
(iii) NO EVENT OF DEFAULT. No Default or Event of Default
shall have occurred and be continuing.
(d) FINANCIAL MATTERS.
(i) FINANCIAL STATEMENTS. The Administrative Agent shall
have received the most recent audited Consolidated financial statements
(including, without limitation, pro forma balance sheets) of the Borrower and
its Subsidiaries, all in form and substance satisfactory to the Administrative
Agent.
(ii) FINANCIAL CONDITION CERTIFICATE. The Borrower shall have
delivered to the Administrative Agent a certificate, in form and substance
satisfactory to the Administrative Agent, and certified as accurate by the chief
executive officer or chief financial officer of the Borrower, that the Borrower
and its Subsidiaries, on a Consolidated basis, are Solvent.
(iii) PAYMENT AT CLOSING; FEE LETTERS. There shall have been
paid by the Borrower to the Administrative Agent and the Lenders the fees set
forth or referenced in Section 4.9 and any other accrued and unpaid fees or
commissions due hereunder (including, without limitation, legal fees and
expenses), and to any other Person such amount as may be due thereto in
connection with the transactions contemplated hereby, including all taxes, fees
and other charges in connection with the execution, delivery, recording, filing
and registration of any of the Loan Documents.
(e) MISCELLANEOUS.
(i) NOTICE OF BORROWING; NOTICE OF ACCOUNT DESIGNATION. The
Administrative Agent shall have received a Notice of Borrowing from the Borrower
in accordance with SECTION 4.1(a), and a Notice of Account Designation
specifying the account or accounts to which the proceeds of any loans made after
the Closing Date are to be disbursed.
(ii) PROCEEDINGS AND DOCUMENTS. All opinions, certificates
and other instruments and all proceedings in connection with the transactions
contemplated by this Agreement shall be satisfactory in form and substance to
the Lenders. The Lenders shall have received copies of all other instruments and
other evidence as the Lender may reasonably request, in form and substance
satisfactory to the Lenders, with respect to the transactions contemplated by
this Agreement and the taking of all actions in connection therewith.
(iii) POWER OF ATTORNEY; PARENT SIDE LETTER. The Borrower
shall have received a power of attorney from the Parent, in form and substance
acceptable to the Administrative Agent, a copy of which shall have been
delivered to the Administrative Agent, and the Parent shall have executed and
delivered to the Administrative Agent the Parent Side Letter, which such side
letter shall be on terms and conditions satisfactory to the Administrative
Agent.
(iv) DUE DILIGENCE AND OTHER DOCUMENTS. The Administrative
Agent shall have completed, to its satisfaction, all legal and business due
diligence with respect to any aspect to the transactions relating to the
Borrower, Parent and the General Partner, including, without limitation,
environmental due diligence and the Borrower shall have delivered to the
Administrative Agent such other documents, certificates and opinions as the
Administrative Agent reasonably requests, certified by a secretary or assistant
secretary of the Borrower as a true and correct copy thereof. To the extent
requested, the Administrative Agent shall have received, reviewed, and approved
in its reasonable satisfaction any other agreement not specifically referenced
herein, the terms of which such agreements govern the future management and
operations of the Borrower.
(v) CONTINUATION OF THE EXISTING LOANS. (A) All outstanding
Revolving Credit Loans under the Original Credit Agreement (the "EXISTING
REVOLVING CREDIT LOANS") made by any Original Lender who is not a Lender
hereunder shall be repaid in full and the commitments and other obligations and
rights (except as expressly set forth in the Original Credit Agreement) of such
Original Lender shall be terminated, (B) all Existing Revolving Credit Loans not
being repaid under item (A) above, shall be, from and after the Closing Date,
Revolving Credit Loans hereunder and the Administrative Agent shall make such
transfers of funds as are necessary in order that the outstanding balance of
such Revolving Credit Loans, together with any Revolving Credit Loans funded
hereunder on the Closing Date, reflect the Revolving Credit Commitments of the
Lenders hereunder, (C) all outstanding Acquisition Loans under the Original
Credit Agreement (the "EXISTING ACQUISITION LOANS") made by any Original Lender
who is not a Lender hereunder shall be repaid in full and the commitments and
other obligations and rights (except as expressly set forth in the Original
Credit Agreement) of such Original Lender shall be terminated, (D) all Existing
Acquisition Loans not being repaid under item (C) above, shall be, from and
after the Closing Date, Acquisition Loans hereunder, and the Administrative
Agent shall make such transfers of funds as are necessary in order that the
outstanding balance of such Acquisition Loans, together with any Acquisition
Loans funded hereunder on the Closing Date, reflect the Acquisition Commitments
of the Lenders hereunder, (E) all outstanding Letters of Credit under the
Original Credit Agreement (the "EXISTING LETTERS OF CREDIT") shall be, from and
after the Closing Date, Letters of Credit hereunder, (F) all accrued but unpaid
interest due on the Existing Revolving Credit Loans and Existing Acquisition
Loans to the Closing Date shall be paid in cash in full on the Closing Date, (G)
all accrued but unpaid fees under the Original Credit Agreement owing to the
Administrative Agent and the Lenders under the Original Credit Agreement to the
Closing Date shall be paid in cash in full on the Closing Date, and (H) all
outstanding promissory notes issued by the Borrower to the Original Lenders
under the Original Credit Agreement shall be deemed canceled and the originally
executed copies thereof shall be promptly returned to the Administrative Agent
who shall forward such notes to the Borrower.
SECTION 5.3 CONDITIONS TO ALL EXTENSIONS OF CREDIT. The obligations
of the Lenders to make any Extension of Credit is subject to the satisfaction of
the following conditions precedent on the relevant borrowing or issue date, as
applicable:
(a) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties contained in Article VI or otherwise made by the Borrower or any
Subsidiary in any Loan Document shall be true and correct, in all material
respects, on and as of such borrowing or issuance date with the same effect as
if made on and as of such date.
(b) NO EXISTING DEFAULT. No Default or Event of Default shall have
occurred and be continuing hereunder (i) on the borrowing date with respect to
such Loan or after giving effect to the Loans to be made on such date or (ii) or
the issue date with respect to such Letter of Credit or after giving affect to
such Letters of Credit on such date.
(c) OFFICER'S COMPLIANCE CERTIFICATE; ADDITIONAL DOCUMENTS. The
Administrative Agent shall have received the current Officer's Compliance
Certificate and each additional document, instrument, legal opinion or other
item of information reasonably requested by it.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 6.1 REPRESENTATIONS AND WARRANTIES. To induce the
Administrative Agent and Lenders to enter into this Agreement and to induce the
Lenders to make the Extensions of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and Lenders both before and after giving
effect to the transactions contemplated hereunder that:
(a) ORGANIZATION; POWER; QUALIFICATION. Each of the Borrower, its
Subsidiaries, the Parent and the General Partner is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, has the power and authority to own its properties
and to carry on its business as now being and hereafter proposed to be conducted
and is duly qualified and authorized to do business in each jurisdiction in
which the character of its properties or the nature of its business requires
such qualification and authorization, except where the failure to so qualify
would not have a Material Adverse Effect. The jurisdictions in which the
Borrower and its Subsidiaries are organized and qualified to do business are
described on SCHEDULE 6.1(a).
(b) OWNERSHIP.
(i) Each Subsidiary of the Borrower is listed on Part I of
SCHEDULE 6.1(b). The capitalization of the Borrower and its Subsidiaries
consists of the number of shares of stock or other ownership interests,
authorized, issued and outstanding, of such classes and series, with or without
par value, described on Part I of SCHEDULE 6.1(b). All outstanding shares or
other ownership interests have been duly authorized and validly issued and are
fully paid and nonassessable. The shareholders or other equity owners of its
Subsidiaries of the Borrower and the number of shares or other ownership
interests owned by each are described on Part I of SCHEDULE 6.1(b). There are no
outstanding warrants, subscriptions, options, securities, instruments or other
rights of any type or nature whatsoever, which are convertible into,
exchangeable for or otherwise provide for or permit the issuance of capital
stock or other ownership interests of the Borrower or its Subsidiaries, except
as described on Part I of SCHEDULE 6.1(b).
(ii) The sole general partner of the Parent is the General
Partner, which owns 224,625 General Partner Units, representing in the aggregate
a 1.0% general partner interest in the Parent. The sole general partner of the
Borrower is the General Partner, which owns a 1.0101% general partner interest
in the Borrower. The only limited partner of the Borrower is the Parent, which
owns a 98.9899% limited partner interest in the Borrower and the Borrower does
not have any partners other than the General Partner and the Parent. Each
General Partner Unit is entitled to share pro rata with the Common Units in all
distributions by the Parent.
(iii) As of the Closing Date, the Capital Stock of the General
Partner is owned by such Persons and in such amounts as listed on Part II of
SCHEDULE 6.1(b).
(iv) The Rabbi Trust owns of record 553,896 Common Units,
free and clear of any Liens.
(c) AUTHORIZATION OF AGREEMENT, LOAN DOCUMENTS AND BORROWING. Each of
the Borrower and its Subsidiaries has the right, power and authority and has
taken all necessary corporate and other action to authorize the execution,
delivery and performance of this Agreement and each of the other Loan Documents
to which it is a party in accordance with their respective terms. This Agreement
and each of the other Loan Documents have been duly executed and delivered by
the duly authorized officers of the Borrower and each of its Subsidiaries party
thereto, and each such document constitutes the legal, valid and binding
obligation of the Borrower or its Subsidiary party thereto, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar state or federal
debtor relief laws from time to time in effect which affect the enforcement of
creditors' rights in general and the availability of equitable remedies.
(d) COMPLIANCE OF AGREEMENT, LOAN DOCUMENTS AND BORROWING WITH LAWS,
ETC. The execution, delivery and performance by the Borrower and its
Subsidiaries of the Loan Documents to which each such Person is a party, in
accordance with their respective terms, the borrowings hereunder and the
transactions contemplated hereby do not and will not, by the passage of time,
the giving of notice or otherwise, (i) require any Governmental Approval or
violate any Applicable Law relating to the Borrower or any of its Subsidiaries,
(ii) conflict with, result in a breach of or constitute a default under the
articles of incorporation, bylaws or other organizational documents of the
Borrower or any of its Subsidiaries or any indenture, agreement or other
instrument to which such Person is a party or by which any of its properties may
be bound or any Governmental Approval relating to such Person, or (iii) result
in or require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by such Person other than Liens arising
under the Loan Documents.
(e) COMPLIANCE WITH LAW; GOVERNMENTAL APPROVALS. Each of the Borrower
and its Subsidiaries (i) has all Governmental Approvals required by any
Applicable Law for it to conduct its business, each of which is in full force
and effect, is final and not subject to review on appeal and is not the subject
of any pending or, to the best of its knowledge, threatened attack by direct or
collateral proceeding, and (ii) is in compliance with each Governmental Approval
applicable to it and in compliance with all other Applicable Laws relating to it
or any of its respective properties, except, in each case, to the extent such
non-compliance would not have a Material Adverse Effect.
(f) TAX RETURNS AND PAYMENTS. Each of the Borrower, its Subsidiaries,
the General Partner and the Parent has duly filed or caused to be filed all
material federal, state and local tax returns required by Applicable Law to be
filed, and has paid, or made adequate provision for the payment of, all federal,
state, local and other taxes, assessments and governmental charges or levies
upon it and its property, income, profits and assets which are due and payable,
other than those the validity of which the Borrower, any Subsidiary, the General
Partner or the Parent is contesting in good faith by appropriate proceedings and
with respect to which the Borrower, such Subsidiary, the General Partner or the
Parent shall, to the extent required by GAAP, have set aside on its books
adequate reserves. No Governmental Authority has asserted any Lien or other
claim against the Borrower or Subsidiary thereof with respect to unpaid taxes
which has not been discharged or resolved. The charges, accruals and reserves on
the books of the Borrower and any of its Subsidiaries in respect of federal,
state, local and other taxes for all Fiscal Years and portions thereof since the
organization of the Borrower and any of its Subsidiaries are in the judgment of
the Borrower adequate, and the Borrower does not anticipate any additional taxes
or assessments for any of such years.
(g) INTELLECTUAL PROPERTY MATTERS. Each of the Borrower and its
Subsidiaries owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, trade names, trade name rights,
copyrights and rights with respect to the foregoing which are required to
conduct its business. No event has occurred which permits, or after notice or
lapse of time or both would permit, the revocation or termination of any such
rights, and neither the Borrower nor any Subsidiary thereof is liable to any
Person for infringement under Applicable Law with respect to any such rights as
a result of its business operations.
(h) ENVIRONMENTAL AND SAFETY MATTERS. Each of the Business, the
Borrower, each Subsidiary, the General Partner and the Parent has complied in
all respects with all Environmental and Safety Laws except for violations that
either alone or in the aggregate could not reasonably be expected to result in a
Material Adverse Effect. None of the Business, the Borrower, any Subsidiary, the
General Partner or the Parent has received notice of any failure so to comply
which alone or together with any other such failure could reasonably be expected
to result in a Material Adverse Effect. None of the Business, the Borrower, any
Subsidiary, the General Partner or the Parent manages or handles any hazardous
wastes, hazardous substances, hazardous materials, toxic substances or toxic
pollutants referred to in or regulated by Environmental and Safety Laws in
violation of such laws or of any other applicable law where such violation could
reasonably be expected to result, individually or together with other
violations, in a Material Adverse Effect. To the best knowledge of the Borrower,
none of the Business, the Borrower, any Subsidiary, the General Partner or the
Parent has any liabilities or contingent liabilities relating to environmental
or employee health and safety matters (including on-site or off-site
contamination) which, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
(i) ERISA.
(i) The Borrower and each ERISA Affiliate is in material
compliance with all applicable provisions of ERISA and the regulations and
published interpretations thereunder and no ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other ERISA
Events could reasonably be expected to result in a Material Adverse Effect.
(ii) Each Employee Benefit Plan that is intended to be
qualified under Section 401(a) of the Code has been determined by the Internal
Revenue Service to be so qualified, and each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code.
(iii) The present value of all benefit liabilities under each
Employee Benefit Plan (based on those assumptions used for purposes of Statement
of Financial Accounting Standards No. 87) did not, as of the last annual
valuation date applicable thereto, exceed by more than $5,000,000 the fair
market value of the assets of such Employee Benefit Plan and the present value
of all underfunded plans (based on those assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the last
annual valuation dates applicable thereto, exceed by more than $5,000,000 the
fair market value of the assets of all such underfunded Employee Benefit Plans.
(j) MARGIN STOCK. Neither the Borrower nor any Subsidiary thereof is
engaged principally or as one of its activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" (as each
such term is defined or used in the regulations of the Board of Governors of the
Federal Reserve System). No part of the proceeds of any of the Loans will be
used for purchasing or carrying margin stock in violation of, or for any purpose
which violates, the provisions of Regulation T, U or X of such Board of
Governors.
(k) GOVERNMENT REGULATION. Neither the Borrower nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company" (as each such term is defined or used in the Investment Company Act of
1940, as amended) and neither the Borrower nor any Subsidiary thereof is, or
after giving effect to any Extension of Credit will be, subject to regulation
under the Public Utility Holding Company Act of 1935 or the Interstate Commerce
Act, each as amended, or any other Applicable Law which limits its ability to
incur or consummate the transactions contemplated hereby.
(l) AGREEMENTS. (i) None of the Business, the Borrower, any of its
Subsidiaries, the General Partner nor the Parent is a party to any agreement or
instrument or subject to any restriction in its partnership or corporate
organizational documents that (i) will have the effect of prohibiting or
restraining, or will impose adverse conditions upon, any of the transactions
contemplated hereby or the payment of dividends or the making of any loans,
investments or transfers by any Subsidiary to or in the Borrower or (ii) has
resulted or could reasonably be expected to result in a Material Adverse Effect.
(m) NO DEFAULTS. None of the Business, the Borrower, any of its
Subsidiaries, the General Partner or the Parent is in default in any manner, and
there is no event or condition which with notice or lapse of time or both would
constitute such a default or event of default, under any provision of any Senior
Note, any Refinancing Note, the Senior Note Agreement, any Refinancing Note
Agreement, or any indenture or other agreement or instrument evidencing
Indebtedness, any Contingent Obligation set forth on SCHEDULE 6.1(m) or any
other material agreement or instrument to which it is a party or by which it or
any of its properties or assets are or may be bound, where such default could
reasonably be expected to result in a Material Adverse Effect.
(n) EMPLOYEE RELATIONS. None of the Borrower and its Subsidiaries is,
except as set forth on Schedule 6.1(n), party to any collective bargaining
agreement nor has any labor union been recognized as the representative of its
employees. There are no strikes against the Business, the Borrower or any
Subsidiary pending or, to the best knowledge of the Borrower, threatened, other
than strikes which, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. The hours worked and payments
made to employees of the Business, the Borrower, each Subsidiary, the General
Partner and the Parent have not been in violation of the Fair Labor Standards
Act or any other applicable law dealing with such matters except for violations
that either alone or in the aggregate could not reasonably be expected to result
in a Material Adverse Effect. All material payments due from the Business, the
Borrower, any Subsidiary, the General Partner and the Parent, or for which any
claim may be made against the Business, the Borrower, any Subsidiary, the
General Partner or the Parent, on account of wages and employee health and
welfare insurance and other benefits have been paid or accrued as a liability on
the books of the Business, the Borrower, such Subsidiary, the General Partner or
the Parent, as applicable, in compliance with GAAP.
(o) BURDENSOME PROVISIONS. Neither the Borrower nor any Subsidiary
thereof is subject to any Governmental Approval or Applicable Law which is so
unusual or burdensome as in the foreseeable future could be reasonably expected
to have a Material Adverse Effect. The Borrower and its Subsidiaries do not
presently anticipate that future expenditures needed to meet the provisions of
any statutes, orders, rules or regulations of a Governmental Authority will be
so burdensome as to have a Material Adverse Effect.
(p) FINANCIAL STATEMENTS. The audited Consolidated balance sheets of
the Borrower and its Subsidiaries as of September 30, 2000 and the related
statements of income and retained earnings and cash flows for the Fiscal Years
then ended, copies of which have been furnished to the Administrative Agent and
each Lender, are complete and correct and fairly present the assets, liabilities
and financial position of the Borrower and its Subsidiaries as at such dates,
and the results of the operations and changes of financial position for the
periods then ended. All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP. The
Borrower and its Subsidiaries have no Indebtedness, obligation or other unusual
forward or long-term commitment which is not fairly reflected in the foregoing
financial statements or in the notes thereto.
(q) NO MATERIAL ADVERSE CHANGE. Since September 30, 2000 there has
been no material adverse change in the properties, business, operations,
prospects, or condition (financial or otherwise) of the Borrower and its
Subsidiaries, taken as a whole, and no event has occurred or condition arisen
that could reasonably be expected to have a Material Adverse Effect.
(r) SOLVENCY. As of the Closing Date and after giving effect to each
Extension of Credit made hereunder, the Borrower and each of its Subsidiaries
will be Solvent.
(s) TITLES TO PROPERTIES. Each of the Borrower and its Subsidiaries
has such title to the real property owned by it as is necessary or desirable to
the conduct of its business and valid and legal title to all of its material
personal property and assets, including, but not limited to, those reflected on
the balance sheets of the Borrower and its Subsidiaries delivered pursuant to
SECTION 6.1(p), except those which have been disposed of by the Borrower or its
Subsidiaries subsequent to such date which dispositions have been in the
ordinary course of business, of assets or properties no longer used or usable in
the conduct of its business or as otherwise expressly permitted hereunder.
(t) LIENS. None of the properties and assets of the Borrower or any
Subsidiary thereof is subject to any Lien, except Liens permitted pursuant to
SECTION 10.2. No financing statement under the Uniform Commercial Code of any
state which names the Borrower or any Subsidiary thereof or any of their
respective trade names or divisions as debtor and which has not been terminated,
has been filed in any state or other jurisdiction and neither the Borrower nor
any Subsidiary thereof has signed any such financing statement or any security
agreement authorizing any secured party thereunder to file any such financing
statement, except to perfect those Liens permitted by SECTION 10.2. The
Obligations hereunder are senior unsecured obligations of the Borrower which
rank PARI PASSU with the Senior Notes.
(u) INDEBTEDNESS AND CONTINGENT OBLIGATIONS. SCHEDULE 6.1(u) is a
complete and correct listing of all Indebtedness and Contingent Obligations of
the Borrower and its Subsidiaries in excess of $5,000,000.
(v) LITIGATION. Except as set forth on SCHEDULE 6.1(v), there are no
actions, suits or proceedings pending nor, to the knowledge of the Borrower,
threatened against or in any other way relating adversely to or affecting the
Borrower or any Subsidiary thereof or any of their respective properties in any
court or before any arbitrator of any kind or before or by any Governmental
Authority, except for actions, suits or proceedings that, if adversely
determined, could, individually or in the aggregate, not reasonably be expected
to result in a Material Adverse Effect.
(w) ABSENCE OF DEFAULTS. No event has occurred or is continuing which
constitutes a Default or an Event of Default, or which constitutes, or which
with the passage of time or giving of notice or both would constitute, a default
or event of default by the Borrower or any Subsidiary thereof under any
judgment, decree or order by which the Borrower or its Subsidiaries or any of
their respective properties may be bound or which would require the Borrower or
its Subsidiaries to make any payment thereunder prior to the scheduled maturity
date therefor.
(x) SENIOR NOTE AGREEMENT. Attached hereto as EXHIBIT H is a true and
correct copy of the Senior Note Agreement, including all amendments thereto. No
default or event of default, or event or condition which with notice or lapse of
time or both would constitute such a default or event of default with respect to
the Borrower exists.
(y) ACCURACY AND COMPLETENESS OF INFORMATION. All written information,
reports and other papers and data produced by or on behalf of the Borrower or
any Subsidiary thereof and furnished to the Lenders were, at the time the same
were so furnished, complete and correct in all material respects; PROVIDED, that
any projections or PRO FORMA financial information contained in any of the
foregoing are represented and warranted only to have been based upon good faith
estimates and assumptions believed by the management of the Borrower and its
Subsidiaries to be reasonable at the time prepared. No document furnished or
written statement made to the Administrative Agent or the Lenders by the
Borrower or any Subsidiary thereof in connection with the negotiation,
preparation or execution of this Agreement or any of the Loan Documents contains
or will contain any untrue statement of a fact material to the creditworthiness
of the Borrower or its Subsidiaries or omits or will omit to state a fact
necessary in order to make the statements contained therein not misleading. The
Borrower is not aware of any facts which it has not disclosed in writing to the
Administrative Agent having a Material Adverse Effect, or insofar as the
Borrower can now foresee, could reasonably be expected to have a Material
Adverse Effect.
SECTION 6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including but not limited to any such representation or warranty made
in or in connection with any amendment thereto) shall constitute representations
and warranties made under this Agreement. All representations and warranties
made under this Agreement shall be made or deemed to be made at and as of the
Closing Date, shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or any borrowing hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been finally and indefeasibly paid and
satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in SECTION 13.11, the Borrower will furnish or
cause to be furnished to the Administrative Agent and to the Lenders at their
respective addresses as set forth on SCHEDULE 1, or such other office as may be
designated by the Administrative Agent and Lenders from time to time:
SECTION 7.1 FINANCIAL STATEMENTS.
(a) QUARTERLY FINANCIAL STATEMENTS. As soon as practicable and in any
event within fifty (50) days after the end of each of the first three fiscal
quarters, an unaudited Consolidated balance sheet of the Borrower and its
Subsidiaries as of the close of such fiscal quarter and unaudited Consolidated
statements of income, retained earnings and cash flows for the fiscal quarter
then ended and that portion of the Fiscal Year then ended, including the notes
thereto, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year and prepared by the Borrower
in accordance with GAAP and, if applicable, containing disclosure of the effect
on the financial position or results of operations of any change in the
application of accounting principles and practices during the period, and
certified by the chief financial officer of the Borrower to present fairly in
all material respects the financial condition of the Borrower and its
Subsidiaries as of their respective dates and the results of operations of the
Borrower and its Subsidiaries for the respective periods then ended, subject to
normal year end adjustments.
(b) ANNUAL FINANCIAL STATEMENTS. As soon as practicable and in any
event within ninety-five (95) days after the end of each Fiscal Year, an audited
Consolidated balance sheet of the Borrower and its Subsidiaries as of the close
of such Fiscal Year and audited Consolidated statements of income, retained
earnings and cash flows for the Fiscal Year then ended, including the notes
thereto, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year and audited by
PriceWaterhouseCoopers LLP or other independent certified public accountants
reasonably acceptable to the Administrative Agent in accordance with GAAP and,
if applicable, containing disclosure of the effect on the financial position or
results of operation of any change in the application of accounting principles
and practices during the year, and accompanied by a report thereon by such
certified public accountants that is not qualified with respect to scope
limitations imposed by the Borrower or any of its Subsidiaries or with respect
to accounting principles followed by the Borrower or any of its Subsidiaries not
in accordance with GAAP.
SECTION 7.2 OFFICER'S COMPLIANCE CERTIFICATE. At each time financial
statements are delivered pursuant to SECTIONS 7.1(a) or (b), a certificate of
the chief financial officer or the treasurer of the Borrower in the form of
EXHIBIT F attached hereto (an "OFFICER'S COMPLIANCE CERTIFICATE").
SECTION 7.3 OTHER REPORTS.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower or its Board of Directors by its independent public
accountants in connection with their auditing function, including, without
limitation, any management report and any management responses thereto;
(b) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
General Partner, the Parent, the Borrower or any Subsidiary with the Securities
and Exchange Commission or any Governmental Authority succeeding to any of or
all the functions of said Commission, or with any national securities exchange,
or distributed to the holders of Common Unit, as the case may be;
(c) concurrently with any delivery of any statement, report,
certificate or other material under Section 5A of the Senior Note Agreement that
has not otherwise been delivered to the Lenders, a copy of each such statement,
report, certificate or other material, which shall in the case of officers' and
accountants' certificates be addressed to the Lenders and provide the analogous
information and certifications in respect of the Loan Documents;
(d) written notice of any action or decision by the Board of
Supervisors of the Parent to change the amount of the Minimum Quarterly
Distribution or not to pay all or any portion of the Minimum Quarterly
Distribution, which notice shall be delivered within three (3) Business Days
after such action or decision; and
(e) such other information regarding the operations, business affairs
and financial condition of the Borrower or any of its Subsidiaries as the
Administrative Agent or any Lender may reasonably request.
SECTION 7.4 NOTICE OF LITIGATION AND OTHER MATTERS. Prompt (but in
no event later than ten (10) days after an officer of the Borrower obtains
knowledge thereof) telephonic and written notice of:
(a) the commencement of all proceedings and investigations by or
before any Governmental Authority and all actions and proceedings in any court
or before any arbitrator against or involving the Borrower or any Subsidiary
thereof or any of their respective properties, assets or businesses, which, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect;
(b) any notice of any violation received by the Borrower or any
Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental and Safety Laws which in
any such case could reasonably be expected to have a Material Adverse Effect;
(c) any labor controversy that has resulted in a strike or other work
action against the Borrower or any Subsidiary thereof that could reasonably be
expected to have a Material Adverse Effect;
(d) any attachment, judgment, lien, levy or order exceeding
$10,000,000 that may be assessed against the Borrower or any Subsidiary thereof;
(e) any Default, Event of Default or Senior Note Default;
(f) any event which makes any of the representations set forth in
SECTION 6.1 inaccurate in any respect;
(g) any other development that has resulted in, or could reasonably be
expected to result in a Material Adverse Effect; and
(h) any notice received under or in connection with the Mellon Note
Purchase Agreement or any event, known to the Borrower, which constitutes or
which with the passage of time or giving of notice or both would constitute a
default or event of default under any of the Mellon Note Documents.
SECTION 7.5 ACCURACY OF INFORMATION. All written information,
reports, statements and other papers and data furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender (other than financial
forecasts) whether pursuant to this Article VII or any other provision of this
Agreement, or any other of the Loan Documents, shall be, at the time the same is
so furnished, complete and correct in all material respects to the extent
necessary to give the Administrative Agent or any Lender, (a) with respect to
financial statements and reports, complete, true and accurate knowledge of the
subject matter based on the Borrower's knowledge of the financial condition of
the Borrower and/or its Subsidiaries for the date or period to which such
financial statements or reports relate and, (b) with respect to all other
written information, reports, statements and other papers and data, complete,
true and accurate knowledge of the subject matter based on the Borrower's
knowledge thereof.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until the Obligations have been finally and indefeasibly paid and
satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner provided for in SECTION 13.11, the Borrower will, and
will cause each of its Subsidiaries to:
SECTION 8.1 EXISTENCE; BUSINESSES AND PROPERTIES.
(i) Do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence and qualify and
remain qualified as a foreign entity in each jurisdiction in which the failure
to do so would have a Material Adverse Effect, except as otherwise permitted by
SECTION 10.5.
(ii) Do or cause to be done all things necessary to preserve,
renew and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated; and at
all times maintain and preserve all property material to the conduct of such
business and keep such property in good repair, working order and condition and
from time to time make, or cause to be made, all needed and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times.
SECTION 8.2 INSURANCE. Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with similarly
situated companies in the same or similar businesses, including public
liability insurance against claims for personal injury or death or property
damage occurring upon in, about or in connection with the use of any properties
owned occupied or controlled by it and maintain such other insurance as may be
required by Applicable Law; PROVIDED, HOWEVER, that nothing in this SECTION 8.2
shall preclude the Borrower or any Subsidiary from being self-insured to the
extent customary with similarly situated companies in the same or similar
businesses.
SECTION 8.3 TAXES. Pay and discharge promptly when due all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property, before the same shall become
delinquent or in default, as well as all lawful claims for labor, materials and
supplies or otherwise which, if unpaid, would give rise to a Lien upon such
properties or any part thereof; PROVIDED, HOWEVER, that such payment and
discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and adequate reserves in
respect thereof shall be maintained in accordance with GAAP.
SECTION 8.4 EMPLOYEE BENEFITS. Comply in all material respects with
the applicable provisions of ERISA and the Code and furnish to the
Administrative Agent as soon as possible after, and in any event within 10 days
after any Responsible Officer of the Borrower or any ERISA Affiliate knows or
has reason to know that, any ERISA Event has occurred that, alone or together
with any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower in an aggregate amount exceeding $5,000,000,
a statement of a Financial Officer setting forth details as to such ERISA Event
and the action, if any, that the Borrower proposes to take with respect thereto.
SECTION 8.5 ACCESS TO PREMISES AND RECORDS; CONFIDENTIALITY.
Maintain financial records in accordance with GAAP, and upon reasonable notice
permit representatives of the Lenders to have access to such financial records
and the premises of the Borrower or any Subsidiary at reasonable times and to
make such excerpts from such records as such representatives deem necessary in
connection with their evaluation of the Borrower's ability to repay the Loans or
any Subsidiary's ability to perform its obligations under the Guarantee
Agreement. Each Lender agrees to keep all information obtained by it pursuant to
this SECTION 8.5 and all other non-public information delivered to it by the
Borrower or any Subsidiary pursuant to this Agreement confidential except to the
extent that (i) disclosure is made, subject to this confidentiality agreement,
to Affiliates, officers, directors, employees, agents and representatives of
such Lender or to the Administrative Agent or any other Lender, (ii) disclosure
of such information is made pursuant to applicable law, regulations, subpoena,
judicial process or the like or at the request of any regulatory authority to
which it is subject or to its counsel or auditors or in any legal proceeding
arising out of this Agreement, (iii) such information is or becomes publicly
available other than by such Lender's breach of this SECTION 8.5, (iv)
disclosure is made to an actual or prospective assignee or participant pursuant
to SECTION 13.10 or (v) such information becomes available to such Lender from a
third party which, by making such information available, has not, to such
Lender's knowledge, breached any obligation of confidentiality it may owe.
SECTION 8.6 COMPLIANCE WITH LAWS. Comply with all applicable laws,
rules and regulations, and all orders of any Governmental Authority, applicable
to it or any of its property, business, operations or transactions (including
ERISA and all Environmental and Safety Laws), except where the failure so to
comply could not reasonably be expected to result in a Material Adverse Effect,
and provide prompt written notice to the Lenders following the receipt of any
notice of any violation of any such laws, rules, regulations or orders from any
Governmental Authority charged with enforcing the same where such violation
could reasonably be expected to result in a Material Adverse Effect.
SECTION 8.7 ADDITIONAL GUARANTORS. Notify the Administrative Agent
if at any time the Borrower or any Subsidiary determines to acquire or form any
Person which would upon such acquisition or formation constitute a Subsidiary
and to cause any such newly acquired or formed Subsidiary to become a guarantor
under the Guarantee Agreement by the execution of documentation reasonably
satisfactory to the Administrative Agent immediately upon such acquisition or
formation.
SECTION 8.8 USE OF PROCEEDS. Use the proceeds of (a) the Revolving
Credit Loans for working capital and general partnership purposes of the
Borrower and its Subsidiaries, including, without limitation, (i) to finance
Restricted Payments to the Parent (and related pro rata Restricted Payments to
the General Partner) to enable the Parent to pay the Minimum Quarterly
Distribution and reasonable expenses of the Parent as set forth in SECTION
10.6(b), (ii) to make required payments under the Mellon Documents to the extent
permitted under SECTION 10.13 and (iii) payment of fees and expenses incurred in
connection with this Agreement, and (b) the Acquisition Loans to finance
Permitted Business Acquisitions.
SECTION 8.9 PARTNERSHIP DOCUMENTS. Perform and comply with, and
cause each of the General Partner and the Parent to perform and comply in all
material respects with all its obligations under each of the Partnership
Documents to which it is a party and enforce and cause each of the General
Partner and the Parent to enforce, in all material respects, each such
Partnership Document against each other party thereto.
SECTION 8.10 COMPLIANCE WITH ENVIRONMENTAL AND SAFETY LAWS. Comply,
and use reasonable efforts to cause all lessees and other Persons occupying its
properties to comply, in all material respects with all Environmental and Safety
Laws and environmental permits applicable to its operations and properties;
obtain and renew all material environmental permits necessary for its operations
and properties; and conduct any necessary remedial action in accordance with
Environmental and Safety Laws; PROVIDED, however, that neither the Borrower nor
any of its Subsidiaries shall be required to undertake any remedial action to
the extent that its obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained under GAAP with
respect to such circumstances.
SECTION 8.11 PREPARATION OF ENVIRONMENTAL REPORTS. If a Default
caused by reason of a breach of SECTIONS 6.1(h) or 8.10 shall have occurred
and be continuing, at the request of the Required Lenders through the
Administrative Agent, provide to Lenders within forty-five (45) days after such
request, at the expense of the Borrower, an environmental site assessment report
for the properties which are the subject of such Default prepared by an
environmental consulting firm acceptable to the Administrative Agent and
consented to by the Borrower (which consent shall not be unreasonably withheld
or delayed), indicating the presence or absence of hazardous materials and the
estimated cost of any compliance or remedial action in connection with such
properties.
SECTION 8.12 CORPORATE IDENTITY. Do or cause to be done (or refrain
from doing or causing to be done, as the case may be) all things necessary to
ensure that the separate legal identity of the Borrower will at all times be
respected and that neither the Borrower nor any of its Subsidiaries will be
liable for any obligations, contractual or otherwise, of the General Partner,
the Parent or any other entity in which the General Partner or the Parent owns
any equity interest, except as permitted under SECTION 10.6(b) or SECTION 10.7.
Without limiting the foregoing, the Borrower will (a) observe, and cause the
General Partner and the Parent to observe, all requirements, procedures and
formalities necessary or advisable in order that the Borrower will for all
purposes be considered a validly existing partnership separate and distinct from
the General Partner, the Parent and their other subsidiaries, (b) not permit any
commingling of the assets of the General Partner, the Parent or any of their
other subsidiaries with assets of the Borrower or any Subsidiary which would
prevent the assets of the General Partner, the Parent or any of their
subsidiaries from being readily distinguished from the assets of the Borrower
and its Subsidiaries and (c) take reasonable and customary actions to ensure
that creditors of the General Partner, the Parent and their other subsidiaries
are aware that each such Person is an entity separate and distinct from the
Borrower and its Subsidiaries.
SECTION 8.13 FEDERAL RESERVE REGULATIONS. In the event the Borrower
or any Subsidiary shall use any proceeds of Loans to acquire or carry any Margin
Stock, the Borrower will not at any time thereafter permit more than 25% of the
value of the assets of the Borrower and its Subsidiaries subject to the
provisions of SECTION 10.2 or 10.5 to be Margin Stock.
SECTION 8.14 AVAILABLE CASH RESERVES. Maintain an amount of cash
reserves that is necessary or appropriate in the reasonable discretion of the
Board of Supervisors of the Borrower to (i) provide for the proper conduct of
the business of the Borrower and its Subsidiaries (including reserves for future
capital expenditures) subsequent to such quarter, (ii) comply with applicable
law or any loan agreement (including, but not limited to, this Agreement),
security agreement, mortgage, debt instrument or other agreement or obligation
to which the Borrower or any, Subsidiary is a party or by which it is bound or
its assets are subject and (iii) provide funds for distributions to partners of
the Parent and the General Partner in respect of any one or more of the next
four quarters; PROVIDED that the Board of Supervisors need not establish cash
reserves pursuant to clause (iii) if the effect of such reserves would be that
the Parent is unable to distribute the Minimum Quarterly Distribution on the
Common Units with respect to such quarter; and PROVIDED, FURTHER, that
disbursements made or cash reserves established, increased or reduced after the
end of any quarter but on or before the date of determination of Available Cash
with respect to such quarter shall be deemed to have been made, established,
increased or reduced for purposes of determining Available Cash, within such
quarter if the Board of Supervisors of the Company so determines. In addition,
without limitation or duplication of the foregoing, Available Cash for any
fiscal quarter shall reflect an amount of cash reserves equal to the reserves
required pursuant to the last paragraph of the definition of "Available Cash".
SECTION 8.15 FURTHER ASSURANCES. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Administrative
Agent or any Lender may reasonably require to document and consummate the
transactions contemplated hereby and to vest completely in and insure the
Administrative Agent and the Lenders their respective rights under this
Agreement, the Notes and the other Loan Documents.
SECTION 8.16 COMMODITY HEDGING POLICY. The Borrower shall not amend
the Borrower's existing commodity hedging policy in any manner that increases
the risk exposure of the Borrower (including, without limitation, any increase
of the limits thereunder) without the prior written consent of the Required
Lenders, which consent shall not be unreasonably withheld.
ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in SECTION 13.11, the Borrower and its
Subsidiaries on a Consolidated basis will not:
SECTION 9.1 INTEREST COVERAGE RATIO. Permit the ratio of EBITDA to
Interest Expense as of the end of any fiscal quarter for the four-quarter-period
ending as of such date to be less than 2.50 to 1.00.
SECTION 9.2 LEVERAGE RATIO. Permit the Leverage Ratio as of the end
of any fiscal quarter to be greater than, (a) from the Closing Date through
March 31, 2001, 5.10 to 1.00 and (b) thereafter, 5.00 to 1.00.
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in SECTION 14.11, the Borrower will not, and
will not cause or permit any of its Subsidiaries to:
SECTION 10.1 INDEBTEDNESS. Incur, create, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness for borrowed money existing on the date hereof in an
aggregate principal amount not in excess of $100,000;
(b) Indebtedness created hereunder and under the other Loan Documents;
(c) in the case of the Guarantors, the Guarantees under the Guarantee
Agreement and the Senior Note Agreement;
(d) in the case of the Borrower, the Senior Notes and Refinancing
Notes in an aggregate principal amount not in excess of the aggregate principal
amount of the Senior Notes redeemed using the net proceeds of such Refinancing
Notes; PROVIDED that, notwithstanding anything to the contrary in this Agreement
or any other Loan Document, no Refinancing Notes shall be issued (and no
Indebtedness shall be incurred under any Refinancing Note Agreement) unless: (i)
concurrently with the issuance of any Refinancing Notes, Senior Notes in a
principal amount equal to the principal amount of such Refinancing Notes shall
have been redeemed and canceled, at a price not in excess of 100% of the
principal amount thereof (plus any premium in respect of such redemption to the
extent paid with the proceeds of the contemporaneous issuance of Common Units of
the Parent), (ii) the terms of the Refinancing Notes and the Refinancing Note
Agreement shall be reasonably satisfactory to the Required Lenders (PROVIDED,
HOWEVER, that the terms of the Refinancing Notes and the Refinancing Note
Agreement shall be deemed to be satisfactory to the Required Lenders if the
Refinancing Notes are issued with substantially the same terms as the Senior
Notes (other than any changes thereto that are not adverse in any respect to the
interests of the Lenders)), (iii) the interest rate of the Refinancing Notes
shall be a fixed, non-increasing interest rate per annum not in excess of the
rate payable in respect of the Senior Notes, payable on a principal amount of
the Refinancing Notes not in excess of the gross proceeds of the sale thereof
and interest on the Refinancing Notes shall be payable not more frequently than
interest is payable on the Senior Notes and (iv) the Refinancing Notes shall
mature not earlier than the maturity date of the Senior Notes and shall not have
a shorter weighted average maturity than the Senior Notes;
(e) Indebtedness of the Borrower arising out of the Mellon Note
Purchase Agreement as in effect on the date hereof;
(f) Indebtedness of the Borrower and its Subsidiaries for standby
letters of credit relating to obligations described in SECTIONS 10.1(h) and (i),
below, in an aggregate amount at any time not to exceed $35,000,000, exclusive
of any stand by Letters of Credit issued by the Issuing Lender pursuant to the
terms of this Agreement;
(g) Indebtedness of the Borrower or any Wholly-Owned Subsidiary to any
Subsidiary or the Borrower, as the case may be;
(h) Indebtedness of the Borrower and its Subsidiaries owed to any
Person providing worker's compensation, health, disability or other employee
benefits or property, casualty or liability insurance to the Borrower or any
Subsidiary, pursuant to reimbursement or indemnification obligations to such
Person;
(i) Indebtedness of the Borrower or its Subsidiaries in respect of
performance bonds, bid bonds, appeal bonds, surety bonds and similar
obligations, in each case provided in the ordinary course of business, including
those incurred to secure health, safety and environmental obligations in the
ordinary course of business, and any extension, renewal or refinancing thereof
to the extent not provided to secure the repayment of other Indebtedness and to
the extent that the amount of refinancing Indebtedness is not greater than the
amount of Indebtedness being refinanced;
(j) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business; PROVIDED that such
Indebtedness is extinguished within two (2) Business Days of its incurrence;
(k) Indebtedness of a Subsidiary acquired after the date hereof and
Indebtedness of a corporation merged or consolidated with or into the Borrower
or any Subsidiary after the date hereof, which Indebtedness in each case exists
at the time of such acquisition, merger, consolidation or conversion into a
Subsidiary and is not created in contemplation of such event and where such
acquisition, merger or consolidation is otherwise permitted by this Agreement;
PROVIDED that the aggregate principal amount of Indebtedness under this
paragraph (k) shall not at any time exceed $5,000,000;
(l) Indebtedness incurred, issued or assumed by the Borrower (i) to
finance the acquisitions, improvements or repairs (to the extent such
improvements and repairs may be capitalized on the books of the Borrower in
accordance with GAAP) of, or additions to, the property and assets of the
Borrower, or (ii) to replace, extend, renew, refund or refinance any such
Indebtedness; PROVIDED that:
(i) the aggregate principal amount of Indebtedness incurred
in connection with any such replacement, extension, renewal, refunding or
refinancing shall not exceed the outstanding principal amount of Indebtedness so
replaced, extended, renewed, refunded or refinanced;
(ii) the aggregate principal amount of Indebtedness incurred
under this clause (l) and outstanding at any time shall not exceed (A)
$25,000,000 PLUS (B) an amount equal to the aggregate net proceeds received by
the Borrower as consideration for the issuance by the Borrower of additional
partnership interests or as a capital contribution in each case for the purpose
of financing such acquisitions, improvements, repairs or additions LESS (C) any
amount of excess proceeds used to permanently reduce the Commitments pursuant to
SECTION 4.5;
(iii) such Indebtedness is secured by a Lien on the property
or assets so acquired, improved or repaired and does not include a negative
pledge on any other assets of the Borrower or its Subsidiaries;
(m) obligations described under clause (j) of the definition of
"Indebtedness" in an aggregate stated amount at any time outstanding, not in
excess of $5,000,000;
(n) obligations under Commodity Hedging Agreements respecting actual
volumes of propane inventory of the Borrower incurred in accordance with the
Borrower's commodity hedging policy, previously approved by the Lenders; and
(o) other unsecured Indebtedness of the Borrower in an aggregate
principal amount at any time outstanding not in excess of $5,000,000; PROVIDED,
HOWEVER, that no Indebtedness may be incurred, created, assumed or permitted to
exist if such insurance, creation, assumption or existence would violate the
provisions of the Senior Note Agreement or any Refinancing Note Agreement at the
time in effect.
SECTION 10.2 LIENS. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any Person,
including any Subsidiary) now owned or hereafter acquired by it or any income or
revenues or rights in respect or any thereof, or sell or transfer any account
receivable or any right in respect thereof, except:
(a) Liens on property or assets of the Borrower existing on the date
hereof and set forth in SCHEDULE 10.2; PROVIDED that such Liens shall secure
only those obligations that they secure on the date hereof and shall not apply
to any other property or assets of the Borrower or any Subsidiary;
(b) any Lien arising as a result of a transaction permitted under
SECTION 10.5(e).
(c) any Lien existing on any property or asset of the Borrower or any
Subsidiary prior to the acquisition thereof by the Borrower or any Subsidiary
securing Indebtedness permitted by SECTION 10.1(j); PROVIDED that (i) such Lien
is not created in contemplation of or in connection with such acquisition and
(ii) such Lien does not apply to any other property or asset of the Borrower or
any Subsidiary;
(d) Liens (other than any Lien imposed by ERISA) incurred and pledges
and deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance, old-age pensions, retiree health benefits
and other social security benefits and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements in respect of such
obligations;
(e) Liens securing the performance of bids, tenders, leases, contracts
(other than for the repayment of borrowed money), statutory obligations surety,
customs and appeal bonds and other obligations of a like nature, incurred as an
incident to and in the ordinary course of business;
(f) Liens imposed by law, such as carriers', warehousemen's,
mechanics', materialmen's and vendors' liens, incurred in good faith in the
ordinary course of business and securing obligations which are not yet due or
which are being contested in good faith by appropriate proceedings as to which
the Borrower or a Subsidiary, as the case may be, shall have, to the extent
required by GAAP, set aside on its books adequate reserves;
(g) Liens securing the payment of taxes, assessments and governmental
charges or levies, either (i) not delinquent or (ii) being contested in good
faith by appropriate legal or administrative proceedings and as to which the
Borrower or a Subsidiary, as the case may be, shall have, to the extent required
by GAAP, set aside on its books adequate reserves;
(h) zoning restrictions, easements, licenses, reservations,
provisions, covenants, conditions, waivers, restrictions on the use of property
or irregularities of title (and with respect to leasehold interests, mortgages,
obligations, liens and other encumbrances incurred, created, assumed or
permitted to exist and arising by, through or under a landlord or owner of the
leased property, with or without consent of the lessee) which do not in the
aggregate materially detract from the value of its property or assets or
materially impair the use thereof in the operation of its business;
(i) Liens on the property or assets of any Subsidiary in favor of the
Borrower or any other Wholly-Owned Subsidiary;
(j) extensions, renewals and replacements of Liens referred to in
paragraphs (a) through (i) of this SECTION 10.2; PROVIDED that any such
extension, renewal or replacement Lien shall be limited to the property or
assets (or improvements thereon) covered by the Lien extended, renewed or
replaced and that the obligations secured by any such extension, renewal or
replacement Lien shall be in an amount not greater than the amount of the
obligations secured by the Lien extended, renewed or replaced;
(k) attachment or judgment Liens not giving rise to an Event of
Default and which are being contested in good faith by appropriate proceedings;
(l) leases or subleases of equipment to customers that do not
materially interfere with the conduct of the business of the Borrower and its
Subsidiaries taken as a whole;
(m) Liens consisting of interests of lessors under Capital Leases
permitted hereunder;
(n) any Lien created to secure all or any part of the purchase price,
or to secure Indebtedness incurred or assumed to pay all or any part of the
purchase price or cost of construction, of property acquired or constructed by
the Borrower or a Subsidiary after the date hereof; PROVIDED, that (i) any such
Lien shall be confined solely to the item or items of such property (or
improvement therein) so acquired or constructed and, if required by the terms of
the instrument creating such Lien, other property (or improvement thereon) which
is an improvement to such acquired or constructed property, (ii) any such Lien
shall be created contemporaneously with, or within ten (10) Business Days after,
the acquisition or construction of such property, and (iii) such Lien does not
exceed an amount equal to 85% (100% in the case of Capital Leases) of the fair
market value of such assets (as determined in good faith by the Board of
Supervisors of the Borrower) at the time of acquisition thereof;
(o) Liens securing Indebtedness permitted by SECTION 10.1(l); and
(p) Liens securing Indebtedness (including interests of lessors under
Capital Leases) permitted by Section 10.1, so long as immediately after giving
effect thereto, the aggregate amount of the Indebtedness secured by such Liens
shall not exceed 2.5% of Total Assets (as defined in the Senior Note Agreement).
Notwithstanding the foregoing, the Borrower will not, and will not permit any
Subsidiary to, create, assume or incur any Lien upon or with respect to any of
its proprietary software developed by or on behalf of the Borrower or its
Affiliates and necessary and useful for the conduct of the Business.
SECTION 10.3 SALE AND LEASE-BACK TRANSACTIONS. Enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell or
transfer any property, real or personal used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred, in an aggregate amount not
to exceed $25,000,000; PROVIDED that the Designated Net Proceeds thereof shall
be applied as a prepayment of the Acquisition Loans and/or reduction of the
Acquisition Commitment as required pursuant to SECTION 4.2(e) and 4.5(b).
SECTION 10.4 INVESTMENTS, LOANS AND ADVANCES. Directly or indirectly
purchase or own any stock, obligations or securities of, or any other interest
in, or make any capital contribution to, any Person, or make or permit to remain
outstanding any loan or advance to, or guarantee, endorse or otherwise be or
become contingently liable, directly or indirectly, in connection with the
obligations of any Person, or make any other Investment, except:
(a) Investments (i) arising out of loans and advances to employees
incurred in the ordinary course of business, (ii) arising out of extensions of
trade credit or advances to third parties in the ordinary course of business and
(iii) acquired by reason of the exercise of customary creditors' rights upon
default or pursuant to the bankruptcy, insolvency or reorganization of a debtor;
(b) Guarantees that constitute Indebtedness to the extent permitted by
SECTIONS 9.2, 9.3 and 10.1 and other Guarantees that are not Guarantees of
Indebtedness and are undertaken in the ordinary course of business;
(c) Investments in (collectively, "CASH EQUIVALENTS")
(i) marketable obligations issued or unconditionally
guaranteed by the United States of America, or issued by any agency thereof and
backed by the full faith and credit of the United States of America, in each
case maturing within one year or less from the date of acquisition thereof;
(ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof maturing within one year from the date of
acquisition thereof and having as at such date the highest rating obtainable
from either Standard & Poor's Rating Group or ▇▇▇▇▇'▇ Investors Service, Inc.;
(iii) commercial paper maturing no more than 270 days from the
date of creation thereof and having as at the date of acquisition thereof one of
the two highest ratings obtainable from either Standard & Poor's Rating Group or
▇▇▇▇▇'▇ Investors Service, Inc.;
(iv) certificates of deposit maturing one year or less from
the date of acquisition thereof issued by commercial banks incorporated under
the laws of the United States of America or any state thereof or the District of
Columbia or Canada or issued by the United States branch of any commercial bank
organized under the laws of any country in Western Europe or Japan, with capital
and stockholders' equity of at least $500,000,000 (or the equivalent in the
currency of such country), (A) the commercial paper or other short term
unsecured debt obligations of which are as at such date rated either A-2 or
better (or comparably if the rating system is changed) by Standard & Poor's
Rating Group or Prime-2 or better (or comparably if the rating system is
changed) by ▇▇▇▇▇'▇ Investors Service, Inc. or (B) the long-term debt
obligations of which are as at such date rated either A or better (or comparably
if the rating system is changed) by Standard & Poor's Rating Group or A-2 or
better (or comparably if the rating system is changed) by ▇▇▇▇▇'▇ Investors
Service, Inc. ("Permitted Banks");
(v) Eurodollar time deposits having a maturity of less than
270 days from the date of acquisition thereof purchased directly from any
Permitted Bank;
(vi) bankers' acceptances eligible for rediscount under
requirements of The Board of Governors of the Federal Reserve System and
accepted by Permitted Banks;
(vii) to the extent permitted under the Senior Note Agreement,
money market funds having assets of not less than $500,000,000;
(viii) obligations of the type described in clauses (i), (ii),
(iii), (iv) or (v) above purchased from a securities dealer designated as a
"primary dealer" by the Federal Reserve Bank of New York or from a Permitted
Bank as counterparty to a written repurchase agreement obligating such
counterparty to repurchase such obligations not later than fourteen (14) days
after the purchase thereof and which provides that the obligations which are the
subject thereof are held for the benefit of the Borrower or a Subsidiary by a
custodian which is a Permitted Bank and which is not a counterparty to the
repurchase agreement in question;
(d) liabilities with respect to any Hedging Agreements or Commodities
Hedging Agreements; and
(e) investments made by a Subsidiary in the Borrower.
SECTION 10.5 MERGERS, CONSOLIDATIONS, SALES OF ASSETS AND
ACQUISITIONS. Merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
any substantial part of its assets (whether now owned or hereafter acquired), or
purchase, lease or otherwise acquire (in one transaction or a series of
transactions) all or any substantial part of the assets of, or any division or
line of business of, any other Person, except that this SECTION 10.5 shall not
prohibit;
(a) the purchase and sale of inventory in the ordinary course of
business by the Borrower or any Subsidiary or the acquisition of facilities and
equipment in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto
no Event of Default or Default shall have occurred and be continuing
(i) the merger of any Subsidiary into the Borrower in a
transaction in which the Borrower is the surviving Person, or the merger or
consolidation of any Subsidiary with and into any other Wholly-Owned domestic
Subsidiary, in each case in a transaction in which no Person other than the
Borrower or a Subsidiary receives any consideration; and
(ii) the merger of any other Person with and into the
Borrower or a Subsidiary if the Borrower or such Subsidiary is the surviving
entity and after giving effect to such transaction (A) the Consolidated Net
Worth of the Borrower and its Subsidiaries shall be not less than the
Consolidated Net Worth of the Borrower and its Subsidiaries immediate, prior to
such transaction, (B) substantially all the assets and business of the Borrower
and its Subsidiaries shall be located in the United States and (C) the Borrower
and its Subsidiaries shall be in compliance, on a pro forma basis after giving
effect to such transaction, with the covenants contained in Article IX
recomputed as of the last day of the most recently ended fiscal quarter of the
Borrower and its Subsidiaries as if such transaction had occurred on the first
day of each relevant period for testing such compliance, and the Borrower shall
have delivered to the Administrative Agent an officer's certificate to such
effect, together with all relevant financial information and calculations
demonstrating such compliance;
(c) Permitted Business Acquisitions and other investments permitted by
SECTION 10.4;
(d) sales, leases or other dispositions of equipment or real property
of the Borrower or its Subsidiaries determined by the Board of Supervisors of
the Borrower or senior management of the Borrower to be no longer useful or
necessary in the operation of the business of the Borrower or its Subsidiaries;
PROVIDED that the Designated Net Proceeds shall be applied as a prepayment of
the Acquisition Loans and/or reduction of the Acquisition Commitment as required
pursuant to SECTION 4.2(e) and SECTION 4.5(b); and
(e) sales, leases or other dispositions of property for consideration
(i) at least 80% of which consists of cash and the remainder
of which consists of investments permitted under SECTION 10.4 or (ii) consisting
of cash and one or more Permitted Business Acquisitions which the Board of
Supervisors of the Borrower shall have determined, as evidenced by a resolution
thereof, have in the aggregate a fair market value not less than the fair market
value of the property being sold, leased or otherwise disposed of; PROVIDED that
the Designated Net Proceeds shall be applied as a prepayment of the Acquisition
Loans and/or reduction of the Acquisition Commitment as required pursuant to
SECTION 4.2(e) and SECTION 4.5(b); PROVIDED, FURTHER, that (i) no issuance of
the Capital Stock (or of any warrant, right or option to purchase or otherwise
acquire any such Capital Stock or any security convertible into or exchangeable
for any such Capital Stock) of any Subsidiary may be made to any Person other
than the Borrower or a Wholly-Owned domestic Subsidiary except for the purpose
of qualifying directors or in satisfaction of pre-emptive rights of holders of
minority interests which are triggered by an issuance of Capital Stock to the
Borrower or any Wholly-Owned domestic Subsidiary and (ii) no sale may be made of
the Capital Stock (or of any warrant, right or option to purchase or otherwise
acquire any such Capital Stock or any security convertible into or exchangeable
for any such Capital Stock) of any Subsidiary except in connection with a sale,
transfer or other disposition in which (i) simultaneously with such sale,
transfer or disposition, all the Capital Stock and Indebtedness of such
Subsidiary at the time owned by the Borrower and any other Subsidiary shall be
sold, transferred or disposed of as an entirety; (ii) in the case of any such
transaction involving value of $1,000,000 or more, the Board of Supervisors of
the Borrower shall have determined, as evidenced by a resolution thereof, that
the proposed sale, transfer or disposition of such Capital Stock and
Indebtedness is in the best interests of the Borrower; (iii) such Capital Stock
and Indebtedness are sold, transferred or otherwise disposed of to a Person for
cash or other consideration that would constitute an investment permitted under
SECTION 10.4 and, in the case of any such transaction involving value of
$1,000,000 or more, on terms reasonably determined by the Board of Supervisors
of the Borrower to be adequate and satisfactory; (iv) the Subsidiary being
disposed of shall not have any continuing investment in the Borrower or any
other Subsidiary not being simultaneously disposed of; and (v) such sale,
transfer or other disposition shall not otherwise be prohibited by this
Agreement.
SECTION 10.6 RESTRICTED PAYMENTS. Directly or indirectly declare,
order, pay, make or set apart any sum for any Restricted Payment, except that
(a) the Borrower may declare or order, and make, pay or set apart, once during
each fiscal quarter, a Restricted Payment in an amount not exceeding the sum of
an amount to be distributed by the Parent to its partners promptly upon receipt
from the Borrower PLUS an amount equal to the proportionate distribution from
the Borrower to the General Partner in respect of such distribution, and (b) the
Borrower may declare or order, and make, pay or set apart, Restricted Payments
to the General Partner and the Parent to fund the payment by them of tax
liabilities, legal, accounting and other professional fees and expenses,
compensation, fees and expenses of the Elected Supervisors of the Parent (as
defined in the Parent Partnership Agreement) and indemnification of and
contribution to all Persons entitled to indemnification or contribution under
Section 8.14 of the Parent Partnership Agreement (as in effect on the Closing
Date), any fees and expenses associated with registration statements filed with
the Securities and Exchange Commission and subsequent ongoing public reporting
requirements, and other liabilities, obligations or costs of the General Partner
or the Parent in each case to the extent actually incurred by the General
Partner or the Parent, as applicable, in connection with, arising from, or
relating to the Business or the Parent's ownership of Capital Stock of the
Borrower and its Subsidiaries; PROVIDED that (i) the aggregate amount of
Restricted Payments declared or ordered, or made, paid, or set apart in any
fiscal quarter shall not exceed Available Cash for the immediately preceding
fiscal quarter and (ii) no Default or Event of Default then exists and is
continuing, or would be caused by such Restricted Payment, and the Borrower and
it Subsidiaries shall be in compliance, on a pro forma basis, with the covenants
contained in Article IX recomputed as of the last day of the most recently ended
fiscal quarter of the Borrower and its Subsidiaries as if such action had
occurred on the first day of each relevant period for testing such compliance,
and the Borrower shall have delivered to the Administrative Agent an officer's
certificate to such effect, together with all relevant financial information and
calculations demonstrating such compliance. The Borrower will comply with the
reserve provisions required under the definition of Available Cash. The Borrower
will not, in any event, directly or indirectly declare, order, pay or make any
Restricted Payment except in cash. The Borrower will not permit any Subsidiary
to declare, order, pay or make any Restricted Payment or to set apart any sum or
property for any such purpose other than to (i) the Borrower or any Wholly-Owned
Subsidiary and (ii) so long as no Default or Event of Default shall have
occurred and be continuing or would be caused thereby, all holders of Capital
Stock of or other equity interests in such Subsidiary on a pro rata basis.
SECTION 10.7 TRANSACTIONS WITH AFFILIATES. Sell or transfer any
assets to, or purchase or acquire any assets from, or otherwise engage in any
material transaction with, any Affiliate except upon fair and reasonable terms
no less favorable to the Borrower or any Subsidiary than those that would
prevail in an arm's-length transaction with a Person which was not an Affiliate
and in a transaction entered into in the ordinary course of business and
pursuant to the reasonable requirements at the time of the Borrower or such
Subsidiary; PROVIDED that this SECTION 10.7 shall not apply to (a) Restricted
Payments permitted under SECTION 10.6, (b) indemnification of and contribution
to all Persons entitled to indemnification or contribution under Section 7.14 of
the Borrower Partnership Agreement (as in effect on the Closing Date) to the
extent such indemnification or contribution arises from business or activities
in connection with the Business (including securities issuances in connection
with funding the Business) or (c) transactions between the Borrower and any
Wholly-Owned domestic Subsidiary, or between Wholly-Owned domestic Subsidiaries
or between Wholly-Owned foreign Subsidiaries.
SECTION 10.8 BUSINESS OF BORROWER AND SUBSIDIARIES. Engage at any
time in any business or business activity other than the business currently
conducted by it and business activities reasonably incidental thereto, except to
the extent resulting from any acquisition permitted under SECTION 10.5.
SECTION 10.9 MATERIAL AGREEMENTS; TAX STATUS.
(a) (i) Directly or indirectly, make any payment, retirement,
repurchase or redemption on account of the principal of or directly or
indirectly prepay or defease any Indebtedness prior to the stated maturity date
of such Indebtedness (other than Indebtedness under the Loan Documents, Senior
Notes redeemed with the proceeds of Refinancing Notes or as required under
Section 4C of the Senior Note Agreement as in effect on the Closing Date or any
analogous provision under any Refinancing Note Agreement to the extent there is
no increase in the amount required to be redeemed), (ii) make any payment or
prepayment of any such Indebtedness that would violate the terms of this
Agreement or of such Indebtedness, any agreement or document evidencing, related
to or securing the payment or performance of such Indebtedness or any
subordination agreement or provision applicable to such Indebtedness or (iii)
pay in cash any amount in respect of any Indebtedness that may at the Borrower's
option be paid in kind.
(b) Amend or modify in any manner adverse to the Lenders, or grant any
waiver or release under (if such action shall be adverse to the Lenders), any
Partnership Document, the Senior Notes, the Senior Note Agreement, any
Refinancing Notes or any Refinancing Note Agreement, Section 9 of the
Compensation Deferral Plan, Sections 2 or 3 of the Rabbi Trust Agreement, or
terminate in any manner any Partnership Document, it being understood, without
limitation, that no modification that reduces principal, interest or fees,
premiums, make-wholes or penalty charges, or extends any scheduled or mandatory
payment, prepayment or redemption of principal or interest, or makes less
restrictive any agreement or waives any condition precedent or default, or
entails the incurrence of additional Indebtedness by the Borrower under the
Senior Notes, the Senior Note Agreement, any Refinancing Notes or any
Refinancing Note Agreement shall be adverse to the Lenders for purposes of this
Agreement; PROVIDED, that with respect to the incurrence of additional
Indebtedness, subsequent to such additional Indebtedness, the Borrower shall
remain in compliance with SECTIONS 9.1, 9.2, 9.3 and 10.11 and such additional
Indebtedness shall be on terms and conditions no more restrictive than the terms
and conditions contained in the Senior Note Agreement.
(c) Permit any Subsidiary to enter into any agreement or instrument
that by its terms restricts the payment of dividends or the making of cash
advances by such Subsidiary to the Borrower or any Subsidiary that is a direct
or indirect parent of such Subsidiary, other than those set forth in the Loan
Documents.
(d) Permit the Parent or the Borrower to be treated as an association
taxable as a corporation or otherwise to be taxed as an entity for Federal
income tax purposes.
SECTION 10.10 LEASE OBLIGATIONS. Permit the aggregate obligations that
are due and payable during any fiscal year of the Borrower and its Subsidiaries
under leases (other than obligations under Capital Leases) to exceed $30,000,000
during such fiscal year.
SECTION 10.11 PRIORITY INDEBTEDNESS. The Borrower will not permit
Priority Indebtedness (as defined in the Senior Note Agreement) at any time to
exceed 25% of Consolidated Net Worth (as defined in the Senior Note Agreement).
SECTION 10.12 CERTAIN ACCOUNTING CHANGES. Change its Fiscal Year end,
or make any change in its accounting treatment and reporting practices except as
required by GAAP.
SECTION 10.13 MELLON NOTE PURCHASE. Make any payment of or set aside
for payment any cash, property or securities pursuant to the Mellon Note
Purchase Agreement except at such time as (a) no Default or Event of Default
exists or would be caused thereby, (b) an Event of Default (as defined in the
Mellon Loan Agreement) has occurred pursuant to Section 7.01(a), (h) or (i) of
the Mellon Loan Agreement, and (c) (i) the Borrower has received a notice of
exercise from the Lender (as defined in the Mellon Note Purchase Agreement) of
its right to require the Borrower to purchase the Mellon Note thereunder or (ii)
the Borrower desires to purchase the Mellon Note and the Required Lenders have
consented in writing in advance to such purchase.
SECTION 10.14 RESTRICTIVE AGREEMENTS. Enter into any Indebtedness
which contains any covenants (including, without limitation, a negative pledge
on assets) more restrictive than the provisions of Articles VIII, IX and X.
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 EVENTS OF DEFAULT. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule or regulation
of any Governmental Authority or otherwise:
(a) DEFAULT IN PAYMENT OF PRINCIPAL OF LOANS AND REIMBURSEMENT
OBLIGATIONS. The Borrower shall default in any payment of principal of any Loan,
Note or Reimbursement Obligation when and as due (whether at maturity, by reason
of acceleration or otherwise).
(b) OTHER PAYMENT DEFAULT. The Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan, Note or Reimbursement Obligation or the payment of any
other Obligation, and such default shall continue unremedied for three (3)
Business Days.
(c) MISREPRESENTATION. Any representation or warranty made or deemed
to be made by the Borrower or any of its Subsidiaries under this Agreement, any
Loan Document or any amendment hereto or thereto, shall prove to have been
incorrect or misleading in any material respect when made or deemed made.
(d) DEFAULT IN PERFORMANCE OF CERTAIN COVENANTS. The Borrower shall
default in the performance or observance of any covenant or agreement contained
in SECTION 7.1, 7.2, 7.4(e) or Articles IX or X of this Agreement.
(e) DEFAULT IN PERFORMANCE OF OTHER COVENANTS AND CONDITIONS. The
Borrower or any Subsidiary thereof shall default in the performance or
observance of any term, covenant, condition or agreement contained in this
Agreement (other than as specifically provided for otherwise in this SECTION
11.1) or any other Loan Document and such default shall continue for a period of
thirty (30) days after written notice thereof has been given to the Borrower by
the Administrative Agent.
(f) INDEBTEDNESS CROSS-DEFAULT. The Borrower or any of its
Subsidiaries shall (i) default in the payment of any Indebtedness (other than
that evidenced by the Notes or any Reimbursement Obligation; but including,
without limitation, the Indebtedness evidenced by the Senior Notes or any
Refinancing Notes), the aggregate outstanding amount of which Indebtedness is in
excess of $10,000,000 beyond the period of grace 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 that evidenced by the Notes or any
Reimbursement Obligation; but including, without limitation, the Indebtedness
evidenced by the Senior Notes or any Refinancing Notes) the aggregate
outstanding amount of which Indebtedness is in excess of $10,000,000 or
contained in any instrument or agreement evidencing, securing or relating
thereto or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, with the giving of notice if required, any such Indebtedness
to become due prior to its stated maturity (any applicable grace period having
expired).
(g) OTHER CROSS-DEFAULTS. The Borrower or any of its Subsidiaries
shall default in the payment when due, or in the performance or observance, of
any obligation or condition of any material contract or agreement unless, but
only as long as, the existence of any such default is being contested by the
Borrower or such Subsidiary in good faith by appropriate proceedings and
adequate reserves in respect thereof have been established on the books of the
Borrower or such Subsidiary to the extent required by GAAP.
(h) CHANGE IN OWNERSHIP. A Change in Ownership shall occur.
(i) VOLUNTARY BANKRUPTCY PROCEEDING. The Borrower or any Subsidiary
thereof shall (i) commence a voluntary case under the federal bankruptcy laws
(as now or hereafter in effect), (ii) file a petition seeking to take advantage
of any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts, (iii) consent
to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (iv)
apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, or liquidator of itself or of a substantial part of its property,
domestic or foreign, (v) admit in writing its inability to pay its debts as they
become due, (vi) make a general assignment for the benefit of creditors, or
(vii) take any corporate action for the purpose of authorizing any of the
foregoing.
(j) INVOLUNTARY BANKRUPTCY PROCEEDING. A case or other proceeding
shall be commenced against the Borrower or any Subsidiary thereof in any court
of competent jurisdiction seeking (i) relief under the federal bankruptcy laws
(as now or hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or adjustment of
debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or
the like for the Borrower or any Subsidiary thereof or for all or any
substantial part of their respective assets, domestic or foreign, and such case
or proceeding shall continue undismissed or unstayed for a period of sixty (60)
consecutive days, or an order granting the relief requested in such case or
proceeding (including, but not limited to, an order for relief under such
federal bankruptcy laws) shall be entered.
(k) FAILURE OF AGREEMENTS. Any provision of this Agreement or any
provision of any other Loan Document shall for any reason cease to be valid and
binding on the Borrower or any Subsidiary party thereto or any such Person shall
so state in writing, other than in accordance with the express terms hereof or
thereof.
(l) ERISA EVENT. The occurrence of any ERISA Event that, when taken
together with all other ERISA Events that have occurred, results in or could
reasonably be expected to result in liability of the Borrower and its ERISA
Affiliates in an aggregate amount exceeding $10,000,000.
(m) JUDGMENT. A judgment or order for the payment of money which
causes the aggregate amount of all such judgments to exceed $10,000,000 in any
Fiscal Year shall be entered against the Borrower or any of its Subsidiaries by
any court and such judgment or order shall continue undischarged or unstayed for
a period of thirty (30) days.
SECTION 11.2 REMEDIES. Upon the occurrence of an Event of Default,
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice
to the Borrower:
(a) ACCELERATION; TERMINATION OF CREDIT FACILITIES. Declare the
principal of and interest on the Loans, the Notes and the Reimbursement
Obligations at the time outstanding, and all other amounts owed to the Lenders
and to the Administrative Agent under this Agreement or any of the other Loan
Documents (including, without limitation, all L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) and all other Obligations, to be forthwith
due and payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all of which
are expressly waived, anything in this Agreement or the other Loan Documents to
the contrary notwithstanding, and terminate the Credit Facilities and any right
of the Borrower to request borrowings or Letters of Credit thereunder; provided,
that upon the occurrence of an Event of Default specified in Section 11.1(i) or
(j), the Credit Facilities shall be automatically terminated and all Obligations
shall automatically become due and payable without presentment, demand, protest
or other notice of any kind, all of which are expressly waived, anything in this
Agreement or in any other Loan Document to the contrary notwithstanding.
(b) LETTERS OF CREDIT. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to SECTION 11.2(a), require the Borrower at such time to
deposit in a cash collateral account with the Administrative Agent an amount
equal to the aggregate then undrawn and unexpired amount of such Letters of
Credit. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay the
other Obligations. After all such Letters of Credit shall have expired or been
fully drawn upon, the Reimbursement Obligation shall have been satisfied and all
other Obligations shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Borrower.
(c) RIGHTS OF COLLECTION. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrower's Obligations.
SECTION 11.3 RIGHTS AND REMEDIES CUMULATIVE; NON-WAIVER; ETC. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of the Administrative Agent or any Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between the Borrower, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1 APPOINTMENT. Each of the Lenders hereby irrevocably
designates and appoints First Union as Administrative Agent of such Lender under
this Agreement and the other Loan Documents for the term hereof and each such
Lender irrevocably authorizes First Union as Administrative Agent for such
Lender, to take such action on its behalf under the provisions of this Agreement
and the other Loan Documents and to exercise such powers and perform such duties
as are expressly delegated to the Administrative Agent by the terms of this
Agreement and such other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement or such other Loan Documents, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein and therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or the other Loan Documents or
otherwise exist against the Administrative Agent. Any reference to the
Administrative Agent in this Article XII shall be deemed to refer to the
Administrative Agent solely in its capacity as Administrative Agent and not in
its capacity as a Lender.
SECTION 12.2 DELEGATION OF DUTIES. The Administrative Agent may
execute any of its respective duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by the Administrative Agent with
reasonable care.
SECTION 12.3 EXCULPATORY PROVISIONS. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or the other Loan Documents (except for actions occasioned solely by
its or such Person's own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any of its Subsidiaries or
any officer thereof contained in this Agreement or the other Loan Documents or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with,
this Agreement or the other Loan Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
the other Loan Documents or for any failure of the Borrower or any of its
Subsidiaries to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Borrower or any of its Subsidiaries.
SECTION 12.4 RELIANCE BY THE ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
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 such Note shall have been
transferred in accordance with SECTION 13.10. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
and the other Loan Documents unless it shall first receive such advice or
concurrence of the Required Lenders (or, when expressly required hereby or by
the relevant other Loan Document, all the Lenders) as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action except for its own gross negligence or
willful misconduct. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
Notes in accordance with a request of the Required Lenders (or, when expressly
required hereby, all the Lenders), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
SECTION 12.5 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless it has received notice from a Lender or the 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, it shall promptly give notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders (or, when expressly required hereby, all the Lenders);
PROVIDED that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders, except to the extent that other provisions of this Agreement expressly
require that any such action be taken or not be taken only with the consent and
authorization or the request of the Lenders or Required Lenders, as applicable.
SECTION 12.6 NON-RELIANCE ON THE ADMINISTRATIVE AGENT AND OTHER
LENDERS. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of the Borrower or any of its Subsidiaries,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries and made its own decision
to make its Loans and issue or participate in Letter of Credit hereunder and
enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigation as it deems necessary to inform itself
as to the business, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder or by the other Loan Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Borrower or
any of its Subsidiaries which may come into the possession of the Administrative
Agent or any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates.
SECTION 12.7 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent in its capacity as such and (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to the respective amounts of their Commitment Percentages,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes or any Reimbursement Obligation) be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or the other Loan Documents, or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; PROVIDED
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's bad faith, gross negligence or willful misconduct. The agreements in
this SECTION 12.7 shall survive the payment of the Notes, any Reimbursement
Obligation and all other amounts payable hereunder and the termination of this
Agreement.
SECTION 12.8 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
Administrative Agent and its respective Subsidiaries and Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Borrower as though the Administrative Agent were not an Administrative Agent
hereunder. With respect to any Loans made or renewed by it and any Note issued
to it and with respect to any Letter of Credit issued by it or participated in
by it, the Administrative Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it were not an Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
SECTION 12.9 RESIGNATION OF THE ADMINISTRATIVE AGENT; SUCCESSOR
ADMINISTRATIVE AGENT. Subject to the appointment and acceptance of a successor
as provided below, the Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, which successor shall have minimum capital and surplus of at least
$500,000,000. If no successor Administrative Agent shall have been so appointed
by the Required Lenders and shall have accepted such appointment within thirty
(30) days after the Administrative Agent's giving of notice of resignation, then
the Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which successor shall have minimum capital and surplus of
at least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this SECTION 12.9 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 NOTICES.
(a) METHOD OF COMMUNICATION. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) ADDRESSES FOR NOTICES. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
If to the Borrower: Suburban Propane, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇ West
P.O. Box 206
Whippany, New Jersey 07981-0206
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
With copies to: Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
If to First Union as First Union National Bank
Administrative Agent: Charlotte Plaza, CP-23
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication Agency Services
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
Bank of America Corporate Center
Suite 4200
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: 704-331-7598
If to any Lender: To the Address set forth on Schedule 1 hereto.
(c) ADMINISTRATIVE AGENT'S OFFICE. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrower and Lenders, as the Administrative Agent's Office referred to herein,
to which payments due are to be made and at which Loans will be disbursed and
Letters of Credit issued.
SECTION 13.2 EXPENSES; INDEMNITY. The Borrower will (a) pay all
out-of-pocket expenses of the Administrative Agent in connection with: (i) the
preparation, execution and delivery of this Agreement and each other Loan
Document, whenever the same shall be executed and delivered, including without
limitation all out-of-pocket syndication and due diligence expenses and
reasonable fees and disbursements of counsel for the Administrative Agent and
(ii) the preparation, execution and delivery of any waiver, amendment or consent
by the Administrative Agent or the Lenders relating to this Agreement or any
other Loan Document, including without limitation reasonable fees and
disbursements of counsel for the Administrative Agent, (b) pay all out-of-pocket
expenses of the Administrative Agent and the Lenders in connection with the
administration and enforcement of any rights and remedies of the Administrative
Agent and Lenders under the Credit Facilities, including consulting with
appraisers, accountants, engineers, attorneys and other Persons concerning the
nature, scope or value of any right or remedy of the Administrative Agent or any
Lender hereunder or under any other Loan Document or any factual matters in
connection therewith, which expenses shall include without limitation the
reasonable fees and disbursements of such Persons, and (c) defend, indemnify and
hold harmless the Administrative Agent and the Lenders, and their respective
parents, Subsidiaries, Affiliates, employees, agents, officers and directors,
from and against any losses, penalties, fines, liabilities, settlements,
damages, costs and expenses, suffered by any such Person in connection with any
claim, investigation, litigation or other proceeding (whether or not the
Administrative Agent or any Lender is a party thereto) and the prosecution and
defense thereof, arising out of or in any way connected with the Agreement, any
other Loan Document or the Loans, including without limitation reasonable
attorney's and consultant's fees, except to the extent that any of the foregoing
directly result from the gross negligence or willful misconduct of the party
seeking indemnification therefor.
SECTION 13.3 SET-OFF. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during the continuance
thereof, the Lenders and any assignee or participant of a Lender in accordance
with SECTION 13.10 are hereby authorized by the Borrower at any time or from
time to time, without notice to the Borrower or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, time or demand, including, but not
limited to, indebtedness evidenced by certificates of deposit, whether matured
or unmatured) and any other indebtedness at any time held or owing by the
Lenders, or any such assignee or participant to or for the credit or the account
of the Borrower against and on account of the Obligations irrespective of
whether or not (a) the Lenders shall have made any demand under this Agreement
or any of the other Loan Documents or (b) the Administrative Agent shall have
declared any or all of the Obligations to be due and payable as permitted by
SECTION 11.2 and although such Obligations shall be contingent or unmatured.
Notwithstanding the preceding sentence, each Lender agrees to notify the
Borrower and the Administrative Agent after any such set-off and application;
PROVIDED, that the failure to give such notice shall not affect the validity of
such set-off and application.
SECTION 13.4 GOVERNING LAW. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be governed
by, construed and enforced in accordance with the laws of the State of New York.
SECTION 13.5 CONSENT TO JURISDICTION. The Borrower hereby irrevocably
consents to the personal jurisdiction of the state and federal courts located in
New York County, New York, in any action, claim or other proceeding arising out
of any dispute in connection with this Agreement, the Notes and the other Loan
Documents, any rights or obligations hereunder or thereunder, or the performance
of such rights and obligations. The Borrower hereby irrevocably consents to the
service of a summons and complaint and other process in any action, claim or
proceeding brought by the Administrative Agent or any Lender in connection with
this Agreement, the Notes or the other Loan Documents, any rights or obligations
hereunder or thereunder, or the performance of such rights and obligations, on
behalf of itself or its property, in the manner specified in SECTION 13.1.
Nothing in this SECTION 13.5 shall affect the right of the Administrative Agent
or any Lender to serve legal process in any other manner permitted by Applicable
Law or affect the right of the Administrative Agent or any Lender to bring any
action or proceeding against the Borrower or its properties in the courts of any
other jurisdictions.
SECTION 13.6 BINDING ARBITRATION; WAIVER OF JURY TRIAL.
(a) BINDING ARBITRATION. Upon demand of any party, whether made before
or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to this Agreement or any
other Loan Document ("DISPUTES"), between or among parties hereto and to the
other Loan Documents shall be resolved by 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, claims brought as class actions, claims
arising from Loan Documents executed in the future, disputes as to whether a
matter is subject to arbitration, or claims concerning any aspect of the past,
present or future relationships arising out of or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "ARBITRATION RULES") of the American
Arbitration Association and Title 9 of the U.S. Code (the "AAA") and the Federal
Arbitration Act. All arbitration hearings shall be conducted in New York, New
York. 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 limitations shall apply to any Dispute. A judgment upon the award
may be entered in any court having jurisdiction. Notwithstanding anything
foregoing to the contrary, any arbitration proceeding demanded hereunder shall
begin within ninety (90) days after such demand thereof and shall be concluded
within one-hundred twenty (120) days after such demand. These time limitations
may not be extended unless a party hereto shows cause for extension and then
such extension shall not exceed a total of sixty (60) days. The panel from which
all arbitrators are selected shall be comprised of licensed attorneys selected
from the Commercial Arbitration Panel of the AAA. The single arbitrator selected
for expedited procedure shall be a retired judge from the highest court of
general jurisdiction, state or federal, of the state where the hearing will be
conducted, or, if no such judge is available, a retired judge, with substantial
appellate experience, from any appellate court of general jurisdiction, state or
federal, of such state. The parties hereto do not waive any applicable Federal
or state substantive law except as provided herein. Notwithstanding the
foregoing, this paragraph shall not apply to any Hedging Agreement that is a
Loan Document.
(b) JURY TRIAL. THE ADMINISTRATIVE AGENT, EACH LENDER AND THE BORROWER
HEREBY ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY
WAIVED THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM
OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) PRESERVATION OF CERTAIN REMEDIES. Notwithstanding the preceding
binding arbitration provisions, the parties hereto and the other Loan Documents
preserve, without diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a Dispute. Each
such Person shall have and hereby reserves the right to proceed in any court of
proper jurisdiction or by self help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any real or
personal property or other security by exercising a power of sale granted in the
Loan Documents or under applicable law or by judicial foreclosure and sale,
including a proceeding to confirm the sale, (ii) all rights of self help
including peaceful occupation of property and collection of rents, set off, and
peaceful possession of property, (iii) obtaining provisional or ancillary
remedies including injunctive relief (including, without limitation, pursuant to
Section 13.8), sequestrations, garnishment, attachment, appointment of receiver
and in 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.
SECTION 13.7 REVERSAL OF PAYMENTS. To the extent the Borrower makes
a payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
SECTION 13.8 INJUNCTIVE RELIEF; PUNITIVE DAMAGES.
(a) The Borrower recognizes that, in the event the Borrower fails to
perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrower agrees that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Administrative Agent, the Lenders and the Borrower (on behalf
of itself and its Subsidiaries) hereby agree that no such Person shall have a
remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
(c) The parties agree that they shall not have a remedy of punitive or
exemplary damages against any other party 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.
SECTION 13.9 ACCOUNTING MATTERS. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by the
Borrower or any Subsidiary thereof to determine compliance with any covenant
contained herein, shall, except as otherwise expressly contemplated hereby or
unless there is an express written direction by the Administrative Agent to the
contrary agreed to by the Borrower, be performed in accordance with GAAP as in
effect on the Closing Date. In the event that changes in GAAP shall be mandated
by the Financial Accounting Standards Board, or any similar accounting body of
comparable standing, or shall be recommended by the Borrower's certified public
accountants, to the extent that such changes would modify such accounting terms
or the interpretation or computation thereof, such changes shall be followed in
defining such accounting terms only from and after the date the Borrower and the
Required Lenders shall have amended this Agreement to the extent necessary to
reflect any such changes in the financial covenants and other terms and
conditions of this Agreement.
SECTION 13.10 SUCCESSORS AND ASSIGNS; PARTICIPATIONS.
(a) BENEFIT OF AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent and the Lenders,
all future holders of the Notes, and their respective successors and assigns,
except that the Borrower shall not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) ASSIGNMENT BY LENDERS. Each Lender may, with the consent of the
Administrative Agent and the Borrower, which consents shall not be unreasonably
withheld and not required of the Borrower upon the occurrence and continuation
of a Default or Event of Default, assign to one or more Eligible Assignees all
or a portion of its interests, rights and obligations under this Agreement and
the other Loan Documents (including, without limitation, all or a portion of the
Extensions of Credit at the time owing to it and the Notes held by it); PROVIDED
that:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's rights and obligations under
this Agreement;
(ii) if less than all of the assigning Lender's Commitment is
to be assigned, the Commitment so assigned shall not be less than $5,000,000;
(iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance in the form of EXHIBIT G attached hereto
(an "ASSIGNMENT AND ACCEPTANCE"), together with any Note or Notes subject to
such assignment;
(iv) such assignment shall not, without the consent of the
Borrower, require the Borrower to file a registration statement with the
Securities and Exchange Commission or apply to or qualify the Loans or the Notes
under the blue sky laws of any state;
(v) no consent of the Borrower or the Administrative Agent
shall be required for an assignment to an Affiliate or Subsidiary of the
assigning Lender; and
(vi) the assigning Lender shall pay to the Administrative
Agent an assignment fee of $3,000 upon the execution by such Lender of the
Assignment and Acceptance; PROVIDED that no such fee shall be payable upon any
assignment by a Lender to an Affiliate thereof or upon any increase in the
Acquisition Commitment in accordance with SECTION 2.5 which does not involve a
new Lender.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
(c) RIGHTS AND DUTIES UPON ASSIGNMENT. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
set forth in such Assignment and Acceptance.
(d) REGISTER. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amount of the Extensions of
Credit with respect to each Lender from time to time (the "REGISTER"). 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 a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
or Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) ISSUANCE OF NEW NOTES. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Eligible Assignee together
with any Note or Notes subject to such assignment and the written consent to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of EXHIBIT G:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the
Register;
(iii) give prompt notice thereof to the Lenders and the
Borrower; and
(iv) promptly deliver a copy of such Assignment and
Acceptance to the Borrower.
Within five (5) Business Days after receipt of notice, the Borrower shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Note or Notes, a new Note or Notes to the order of such Eligible Assignee in
amounts equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and a new Note or Notes to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of the assigned Notes delivered to the assigning Lender. Each surrendered Note
or Notes shall be canceled and returned to the Borrower.
(f) PARTICIPATIONS. Each Lender may sell participations to one or more
banks or other entities in all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Extensions of Credit and the Notes held by it); PROVIDED that:
(i) each such participation shall be in an amount not less
than $5,000,000;
(ii) such Lender's obligations under this Agreement
(including, without limitation, its Commitment) shall remain unchanged;
(iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(iv) such Lender shall remain the holder of the Notes held by
it for all purposes of this Agreement;
(v) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement;
(vi) such Lender shall not permit such participant the right
to approve any waivers, amendments or other modifications to this Agreement or
any other Loan Document other than waivers, amendments or modifications which
would reduce the principal of or the interest rate on any Loan or Reimbursement
Obligation, extend the term or increase the amount of the Commitment, reduce the
amount of any fees to which such participant is entitled, extend any scheduled
payment date for principal of any Loan or, except as expressly contemplated
hereby or thereby, release substantially all of the Collateral; and
(vii) any such disposition shall not, without the consent of
the Borrower, require the Borrower to file a registration statement with the
Securities and Exchange Commission to apply to qualify the Loans or the Notes
under the blue sky law of any state.
(g) DISCLOSURE OF INFORMATION; CONFIDENTIALITY. The Administrative
Agent and the Lenders shall hold all non-public information with respect to the
Borrower obtained pursuant to the Loan Documents in accordance with their
customary procedures for handling confidential information; provided, that the
Administrative Agent may disclose information relating to this Agreement to Gold
Sheets and other similar bank trade publications, such information to consist of
deal terms and other information customarily found in such publications and
provided further, that the Administrative Agent and Lenders may disclose any
such information to the extent such disclosure is required by law or requested
by any regulatory authority. Any Lender may, in connection with any assignment,
proposed assignment, participation or proposed participation pursuant to this
SECTION 13.10, disclose to the assignee, participant, proposed assignee or
proposed participant, any information relating to the Borrower furnished to such
Lender by or on behalf of the Borrower; PROVIDED, that prior to any such
disclosure, each such assignee, proposed assignee, participant or proposed
participant shall agree with the Borrower or such Lender to preserve the
confidentiality of any confidential information relating to the Borrower
received from such Lender.
(h) CERTAIN PLEDGES OR ASSIGNMENTS. Nothing herein shall prohibit any
Lender from pledging or assigning any Note to any Federal Reserve Bank in
accordance with Applicable Law.
SECTION 13.11 AMENDMENTS, WAIVERS AND CONSENTS. Except as set forth
below or as specifically provided in any Loan Document (including, without
limitation, SECTION 2.5), any term, covenant, agreement or condition of this
Agreement or any of the other Loan Documents may be amended or waived by the
Lenders, and any consent given by the Lenders, if, but only if, such amendment,
waiver or consent is in writing signed by the Required Lenders (or by the
Administrative Agent with the consent of the Required Lenders) and delivered to
the Administrative Agent and, in the case of an amendment, signed by the
Borrower; PROVIDED that, except as specifically set forth in SECTION 2.5, no
amendment, waiver or consent shall (a) increase the amount or extend the time of
the obligation of the Lenders to make Loans or issue or participate in Letters
of Credit (including without limitation pursuant to SECTION 3.5), (b) reduce or
forgive the principal amount of any Loan or Reimbursement Obligation, (c) extend
the originally scheduled time or times of payment of the principal of any Loan
or Reimbursement Obligation or the time or times of payment of interest on any
Loan, (d) reduce the rate of interest or fees payable on any Loan or
Reimbursement Obligation or any fee or commission with respect thereto, (e)
permit any subordination of the principal or interest on any Loan or
Reimbursement Obligation, (f) permit any assignment (other than as specifically
permitted or contemplated in this Agreement) of any of the Borrower's rights and
obligations hereunder, (g) terminate or cancel any Guarantee Agreement or
release any Guarantor from its obligations under a Guarantee Agreement or (h)
amend the provisions of SECTION 13.10(a), this SECTION 13.11 or the definition
of Required Lenders, without the prior written consent of each Lender. In
addition, no amendment, waiver or consent to the provisions of (a) Article XII
shall be made without the written consent of the Administrative Agent and (b)
Article III without the written consent of the Issuing Lender.
SECTION 13.12 PERFORMANCE OF DUTIES. The Borrower's obligations under
this Agreement and each of the Loan Documents shall be performed by the Borrower
at its sole cost and expense.
SECTION 13.13 ALL POWERS COUPLED WITH INTEREST. All powers of attorney
and other authorizations granted to the Lenders, the Administrative Agent and
any Persons designated by the Administrative Agent or any Lender pursuant to any
provisions of this Agreement or any of the other Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied or the Credit Facilities have not been
terminated.
SECTION 13.14 SURVIVAL OF INDEMNITIES. Notwithstanding any termination
of this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article XIII and any other
provision of this Agreement and the Loan Documents shall continue in full force
and effect and shall protect the Administrative Agent and the Lenders against
events arising after such termination as well as before.
SECTION 13.15 TITLES AND CAPTIONS. Titles and captions of Articles,
Sections and subsections in, and the table of contents of, this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 13.16 SEVERABILITY OF PROVISIONS. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 13.17 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
SECTION 13.18 TERM OF AGREEMENT. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
shall have been indefeasibly and irrevocably paid and satisfied in full. No
termination of this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination or in respect of any provision
of this Agreement which survives such termination.
SECTION 13.19 INCONSISTENCIES WITH OTHER DOCUMENTS; INDEPENDENT EFFECT
OF COVENANTS.
(a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement shall
control.
(b) The Borrower expressly acknowledges and agrees that each covenant
contained in Articles VIII, IX or X shall be given independent effect.
Accordingly, the Borrower shall not engage in any transaction or other act
otherwise permitted under any covenant contained in Articles VIII, IX or X if,
before or after giving effect to such transaction or act, the Borrower shall or
would be in breach of any other covenant contained in Articles VIII, IX or X.
SECTION 13.20 ENTIRE AGREEMENT. This Agreement and the other Loan
Documents represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the parties. There are no unwritten oral agreements between the
parties.
[Signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, all as of the day and year first
written above.
SUBURBAN PROPANE, L.P.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: VICE PRESIDENT AND TREASURER
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[Signature pages continue]
FIRST UNION NATIONAL BANK,
as Administrative Agent, as Lender, as
Swingline Lender and as Issuing Lender
By: /S/ ▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
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Title: VICE PRESIDENT
---------------------------------
[Signature pages continue]
FLEET NATIONAL BANK,
as Syndication Agent and as Lender
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: DIRECTOR
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[Signature pages continue]
THE BANK OF NEW YORK, as Lender
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Title: VICE PRESIDENT
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[Signature pages continue]
ABN AMRO BANK N.V., as Lender
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: GROUP VICE PRESIDENT
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By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: VICE PRESIDENT
----------------------------------
[Signature pages continue]
THE FUJI BANK, LIMITED, as Lender
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: SENIOR VICE PRESIDENT AND MANAGER
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS......................................................1
SECTION 1.1 Definitions...................................................1
SECTION 1.2 General......................................................20
SECTION 1.3 Other Definitions and Provisions.............................21
ARTICLE II THE CREDIT FACILITIES...........................................21
SECTION 2.1 Revolving Credit Loans.......................................21
SECTION 2.2 Swingline Loans..............................................22
SECTION 2.3 Liquidity Loans..............................................23
SECTION 2.4 Acquisition Loans............................................24
SECTION 2.5 Increase of Acquisition Commitment...........................24
ARTICLE III LETTER OF CREDIT FACILITY.......................................25
SECTION 3.1 L/C Commitment...............................................25
SECTION 3.2 Procedure for Issuance of Letters of Credit..................26
SECTION 3.3 Commissions and Other Charges................................26
SECTION 3.4 L/C Participations...........................................27
SECTION 3.5 Reimbursement Obligation of the Borrower.....................28
SECTION 3.6 Obligations Absolute.........................................28
ARTICLE IV GENERAL LOAN PROVISIONS.........................................29
SECTION 4.1 Procedure for Advances of Loans..............................29
SECTION 4.2 Repayment of Loans...........................................30
SECTION 4.3 Notes........................................................31
SECTION 4.4 Limitations on Incurrence of Extensions of Credit............31
SECTION 4.5 Permanent Reduction of the Revolving Credit Commitment and
the Acquisition Commitment...................................32
SECTION 4.6 Termination of Credit Facilities.............................33
SECTION 4.7 Interest.....................................................33
SECTION 4.8 Notice and Manner of Conversion or Continuation of Loans.....36
SECTION 4.9 Fees.........................................................36
SECTION 4.10 Manner of Payment............................................37
SECTION 4.11 Crediting of Payments and Proceeds...........................37
SECTION 4.12 Adjustments..................................................37
SECTION 4.13 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent...............38
SECTION 4.14 Changed Circumstances........................................38
SECTION 4.15 Indemnity....................................................40
SECTION 4.16 Capital Requirements.........................................40
SECTION 4.17 Taxes........................................................41
SECTION 4.18 Duty to Mitigate; Assignment of Commitments Under Certain
Circumstances................................................43
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING....................43
SECTION 5.1 Closing......................................................43
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit.......43
SECTION 5.3 Conditions to All Extensions of Credit.......................47
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BORROWER..................47
SECTION 6.1 Representations and Warranties...............................47
SECTION 6.2 Survival of Representations and Warranties, Etc..............53
ARTICLE VII FINANCIAL INFORMATION AND NOTICES...............................54
SECTION 7.1 Financial Statements.........................................54
SECTION 7.2 Officer's Compliance Certificate.............................55
SECTION 7.3 Other Reports................................................55
SECTION 7.4 Notice of Litigation and Other Matters.......................55
SECTION 7.5 Accuracy of Information......................................56
ARTICLE VIII AFFIRMATIVE COVENANTS...........................................56
SECTION 8.1 Existence; Businesses and Properties.........................57
SECTION 8.2 Insurance....................................................57
SECTION 8.3 Taxes........................................................57
SECTION 8.4 Employee Benefits............................................57
SECTION 8.5 Access to Premises and Records; Confidentiality..............58
SECTION 8.6 Compliance with Laws.........................................58
SECTION 8.7 Additional Guarantors........................................58
SECTION 8.8 Use of Proceeds..............................................58
SECTION 8.9 Partnership Documents........................................59
SECTION 8.10 Compliance with Environmental and Safety Laws................59
SECTION 8.11 Preparation of Environmental Reports.........................59
SECTION 8.12 Corporate Identity...........................................59
SECTION 8.13 Federal Reserve Regulations..................................59
SECTION 8.14 Available Cash Reserves......................................60
SECTION 8.15 Further Assurances...........................................60
SECTION 8.16 Commodity Hedging Policy.....................................60
ARTICLE IX FINANCIAL COVENANTS.............................................60
SECTION 9.1 Interest Coverage Ratio......................................60
SECTION 9.2 Leverage Ratio...............................................61
ARTICLE X NEGATIVE COVENANTS..............................................61
SECTION 10.1 Indebtedness.................................................61
SECTION 10.2 Liens........................................................63
SECTION 10.3 Sale and Lease-Back Transactions.............................65
SECTION 10.4 Investments, Loans and Advances..............................65
SECTION 10.5 Mergers, Consolidations, Sales of Assets and Acquisitions....67
SECTION 10.6 Restricted Payments..........................................68
SECTION 10.7 Transactions with Affiliates.................................69
SECTION 10.8 Business of Borrower and Subsidiaries........................69
SECTION 10.9 Material Agreements; Tax Status..............................70
SECTION 10.10 Lease Obligations............................................70
SECTION 10.11 Priority Indebtedness........................................71
SECTION 10.12 Certain Accounting Changes...................................71
SECTION 10.13 Mellon Note Purchase.........................................71
SECTION 10.14 Restrictive Agreements.......................................71
ARTICLE XI DEFAULT AND REMEDIES............................................71
SECTION 11.1 Events of Default............................................71
SECTION 11.2 Remedies.....................................................73
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc..............74
ARTICLE XII THE ADMINISTRATIVE AGENT........................................74
SECTION 12.1 Appointment..................................................74
SECTION 12.2 Delegation of Duties.........................................75
SECTION 12.3 Exculpatory Provisions.......................................75
SECTION 12.4 Reliance by the Administrative Agent.........................75
SECTION 12.5 Notice of Default............................................76
SECTION 12.6 Non-Reliance on the Administrative Agent and Other Lenders...76
SECTION 12.7 Indemnification..............................................77
SECTION 12.8 The Administrative Agent in Its Individual Capacity..........77
SECTION 12.9 Resignation of the Administrative Agent; Successor
Administrative Agent.........................................77
ARTICLE XIII MISCELLANEOUS...................................................78
SECTION 13.1 Notices......................................................78
SECTION 13.2 Expenses; Indemnity..........................................79
SECTION 13.3 Set-off......................................................80
SECTION 13.4 Governing Law................................................80
SECTION 13.5 Consent to Jurisdiction......................................80
SECTION 13.6 Binding Arbitration; Waiver of Jury Trial....................80
SECTION 13.7 Reversal of Payments.........................................82
SECTION 13.8 Injunctive Relief; Punitive Damages..........................82
SECTION 13.9 Accounting Matters...........................................82
SECTION 13.10 Successors and Assigns; Participations.......................83
SECTION 13.11 Amendments, Waivers and Consents.............................86
SECTION 13.12 Performance of Duties........................................86
SECTION 13.13 All Powers Coupled with Interest.............................86
SECTION 13.14 Survival of Indemnities......................................86
SECTION 13.15 Titles and Captions..........................................86
SECTION 13.16 Severability of Provisions...................................87
SECTION 13.17 Counterparts.................................................87
SECTION 13.18 Term of Agreement............................................87
SECTION 13.19 Inconsistencies with Other Documents; Independent Effect
of Covenants.................................................87
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Acquisition Note
Exhibit A-3 - Form of Swingline Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Notice of Conversion/Continuation
Exhibit F - Form of Officer's Compliance Certificate
Exhibit G - Form of Assignment and Acceptance
Exhibit H - Senior Note Agreement
Exhibit I - Lender Addition and Acknowledgment Agreement
SCHEDULES
Schedule 1 - Lenders and Commitments
Schedule 6.1(a) - Jurisdictions of Organization and Qualification
Schedule 6.1(b) - Subsidiaries and Capitalization
Schedule 6.1(m) - Defaults
Schedule 6.1(n) - Employee Relations
Schedule 6.1(u) - Indebtedness and Contingent Obligations
Schedule 6.1(v) - Litigation
Schedule 10.2 - Existing Liens