Exhibit 4
CREDIT AGREEMENT
Dated as of April 30, 2002
among
▇▇▇▇▇ & MINOR, INC.,
as Borrower,
CERTAIN OF ITS DOMESTIC SUBSIDIARIES IDENTIFIED HEREIN,
as Guarantors,
THE BANKS IDENTIFIED HEREIN,
WACHOVIA BANK, NATIONAL ASSOCIATION
and
SUNTRUST BANK,
as Syndication Agents,
▇▇▇▇▇▇ BROTHERS INC.
and
THE BANK OF NEW YORK,
as Documentation Agents
AND
BANK OF AMERICA, N.A.,
as Administrative Agent
ARRANGED BY:
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
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SECTION 1 DEFINITIONS AND ACCOUNTING TERMS.........................................................5
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1.1 Definitions.........................................................................5
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1.2 Computation of Time Periods........................................................27
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1.3 Accounting Terms...................................................................28
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SECTION 2 CREDIT FACILITIES.......................................................................28
2.1 Commitments........................................................................28
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2.2 Method of Borrowing................................................................29
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2.3 Interest...........................................................................30
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2.4 Repayment..........................................................................31
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2.5 Notes..............................................................................31
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2.6 Additional Provisions relating to Letters of Credit................................31
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2.7 Additional Provisions relating to Swingline Loans..................................35
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SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITY............................................36
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3.1 Default Rate.......................................................................36
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3.2 Conversion.........................................................................36
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3.3 Termination of Commitments.........................................................37
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3.4 Prepayments........................................................................37
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3.5 Fees...............................................................................37
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3.6 Capital Adequacy...................................................................38
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3.7 Limitation on Eurodollar Loans.....................................................39
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3.8 Illegality.........................................................................39
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3.9 Requirements of Law................................................................39
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3.10 Treatment of Affected Loans........................................................40
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3.11 Taxes..............................................................................41
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3.12 Compensation.......................................................................43
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3.13 Pro Rata Treatment.................................................................44
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3.14 Sharing of Payments................................................................45
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3.15 Payments, Computations, Etc........................................................46
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3.16 Evidence of Debt...................................................................47
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3.17 Certain Limitations................................................................48
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SECTION 4 GUARANTY................................................................................48
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4.1 The Guaranty.......................................................................48
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4.2 Obligations Unconditional..........................................................49
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4.3 Reinstatement......................................................................50
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4.4 Certain Additional Waivers.........................................................50
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4.5 Remedies...........................................................................50
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4.6 Rights of Contribution.............................................................50
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4.7 Guarantee of Payment; Continuing Guarantee.........................................51
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SECTION 5 CONDITIONS PRECEDENT....................................................................52
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5.1 Conditions to Closing..............................................................52
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5.2 Conditions to all Extensions of Credit.............................................53
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SECTION 6 REPRESENTATIONS AND WARRANTIES..........................................................54
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6.1 Organization and Good Standing.....................................................54
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6.2 Due Authorization..................................................................54
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6.3 No Conflicts.......................................................................54
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6.4 Consents...........................................................................54
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6.5 Enforceable Obligations............................................................55
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6.6 Reserved...........................................................................55
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6.7 Financial Condition................................................................55
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6.8 No Changes or Restricted Payments..................................................55
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6.9 No Default.........................................................................55
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6.10 Liens..............................................................................56
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6.11 Indebtedness.......................................................................56
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6.12 Litigation.........................................................................56
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6.13 Material Agreements................................................................56
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6.14 Taxes..............................................................................56
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6.15 Compliance with Law................................................................56
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6.16 ERISA..............................................................................56
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6.17 Subsidiaries.......................................................................58
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6.18 Use of Proceeds; Margin Stock......................................................58
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6.19 Government Regulation..............................................................58
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6.20 Environmental Matters..............................................................58
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6.21 Intellectual Property, Franchises, etc.............................................59
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6.22 Investments........................................................................59
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6.23 No Material Misstatements..........................................................60
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6.24 Labor Matters......................................................................60
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SECTION 7 AFFIRMATIVE COVENANTS....................................................................60
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7.1 Information Covenants..............................................................60
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7.2 Preservation of Existence and Franchises...........................................63
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7.3 Books, Records and Inspections.....................................................63
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7.4 Compliance with Law................................................................64
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7.5 Payment of Taxes and Other Indebtedness............................................64
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7.6 Insurance..........................................................................64
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7.7 Maintenance of Property............................................................64
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7.8 Performance of Obligations.........................................................65
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7.9 Use of Proceeds....................................................................65
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7.10 Financial Covenants................................................................65
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7.11 Additional Credit Parties..........................................................65
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SECTION 8 NEGATIVE COVENANTS......................................................................66
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8.1 Indebtedness.......................................................................66
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8.2 Liens..............................................................................67
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8.3 Nature of Business.................................................................67
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8.4 Consolidation, Merger, Sale or Purchase of Assets, etc.............................67
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8.5 Asset Dispositions.................................................................68
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8.6 Advances, Investments and Loans....................................................69
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8.7 Prepayments and Amendments Relating to Other Debt..................................69
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8.8 Transactions with Affiliates.......................................................70
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8.9 Ownership of Subsidiaries..........................................................71
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8.10 Fiscal Year........................................................................71
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8.11 Subsidiary Dividends...............................................................71
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8.12 Restricted Payments................................................................71
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SECTION 9 EVENTS OF DEFAULT.......................................................................72
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9.1 Events of Default..................................................................72
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9.2 Acceleration; Remedies.............................................................74
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SECTION 10 AGENCY PROVISIONS......................................................................75
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10.1 Appointment and Authorization of Agent.............................................75
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10.2 Delegation of Duties...............................................................75
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10.5 Notice of Default..................................................................77
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10.6 Credit Decision; Disclosure of Information by Agent................................77
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10.7 Indemnification of Agent...........................................................77
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10.8 Agent in its Individual Capacity...................................................78
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10.9 Successor Agent....................................................................78
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10.10 Other Agents; Lead Managers........................................................78
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SECTION 11 MISCELLANEOUS..........................................................................79
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11.1 Notices............................................................................79
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11.2 Right of Set-Off; Adjustments......................................................79
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11.3 Successors and Assigns.............................................................79
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11.4 No Waiver; Remedies Cumulative.....................................................79
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11.5 Expenses; Indemnification..........................................................82
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11.6 Amendments, Waivers and Consents...................................................82
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11.7 Counterparts.......................................................................83
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11.8 Headings...........................................................................84
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11.9 Survival...........................................................................84
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11.10 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial.............84
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11.11 Severability.......................................................................85
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11.12 Entirety...........................................................................85
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11.13 Binding Effect; Termination........................................................85
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11.14 Confidentiality....................................................................86
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11.15 Source of Funds....................................................................86
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11.16 Conflict...........................................................................87
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SCHEDULES
Schedule 2.1 Commitments
Schedule 2.2(a)(i) Form of Notice of Revolving Loan Borrowing
Schedule 2.2(a)(ii) Form of Notice of Swingline Loan Borrowing
Schedule 2.2(a)(iii) Form of Notice of Request of Letter of Credit
Schedule 2.5 Form of Revolving Note
Schedule 3.2 Form of Notice of Conversion
Schedule 5.1(b) Form of Legal Opinions
Schedule 5.1(e) Form of Officer's Certificate
Schedule 6.17 Subsidiaries
Schedule 7.1(c) Form of Borrowing Base Certificate
Schedule 7.1(d) Form of Officer's Compliance Certificate
Schedule 7.11 Form of Joinder Agreement
Schedule 8.1(b) Existing Indebtedness
Schedule 8.2 Existing Liens
Schedule 11.1 Notice Addresses
Schedule 11.3(b) Form of Assignment and Acceptance Agreement
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of April 30, 2002 (the "Credit Agreement"),
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is by and among ▇▇▇▇▇ & MINOR, INC., a Virginia corporation (the "Borrower"),
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the Guarantors (as defined herein), the Banks (as defined herein), Wachovia
Bank, National Association, and SunTrust Bank, as Syndication Agents, ▇▇▇▇▇▇
Brothers Inc. and The Bank of New York, as Documentation Agents, and BANK OF
AMERICA, N.A., as administrative agent for the Banks (in such capacity, the
"Administrative Agent").
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W I T N E S S E T H
WHEREAS, the Borrower has requested that the Banks provide a $150,000,000
senior revolving credit facility for the purposes hereinafter provided; and
WHEREAS, the Banks have agreed to provide the requested credit facility on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
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1.1 Definitions.
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As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Acquisition", by any Person, means the purchase or acquisition by such
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Person of any Capital Stock of another Person (other than a member of the
Consolidated Group) or all or any substantial portion of the Property (other
than Capital Stock) of another Person (other than a member of the Consolidated
Group), whether or not involving a merger or consolidation with such other
Person.
"Additional Credit Party" means each Domestic Subsidiary that becomes a
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Guarantor after the Closing Date by execution of a Joinder Agreement.
"Administrative Agent" means the Person identified as such in the heading
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hereof, together with any permitted successors and assigns.
"Administrative Agent's Fee Letter" means the letter agreement dated as of
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March 12, 2002 between the Administrative Agent and the Borrower, as amended,
modified, supplemented or replaced from time to time.
"Affiliate" means, with respect to any Person, any other Person directly or
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indirectly controlling (including but not limited to all directors and officers
of such Person), controlled by or under direct or
5
indirect common control with such Person. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the election
of directors of such corporation or (ii) to direct or cause direction of the
management and policies of such corporation, whether through the ownership of
voting securities, by contract or otherwise.
"Agent-Related Persons" means the Administrative Agent (including any
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successor Administrative Agent), together with its Affiliates (including, in the
case of Bank of America in its capacity as the Administrative Agent, the
Arranger), and the officers, directors, employees, agents and attorneys-in-fact
of such Persons and Affiliates.
"Aggregate Revolving Committed Amount" shall have the meaning assigned to
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such term in Section 2.1(a).
"Applicable Federal Funds Rate" means, for any day, a per annum rate equal
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to the sum of (i) the Federal Funds Rate plus (ii) one-eighth of one percent
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(0.125%). Any change in the Applicable Federal Funds Rate due to a change in the
Federal Funds Rate shall be effective on the effective date of such change in
the Federal Funds Rate.
"Applicable Lending Office" means, for each Bank, the office of such Bank
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(or of an affiliate of such Bank) as such Bank may from time to time specify to
the Administrative Agent and the Borrower by written notice as the office by
which its Eurodollar Loans are made and maintained.
"Applicable Percentage" means for any day, the rate per annum set forth
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below opposite the applicable Consolidated Total Leverage Ratio then in effect,
it being understood that the Applicable Percentage for (i) Base Rate Loans shall
be the percentage set forth under the column "Base Rate Margin", (ii) Eurodollar
Loans shall be the percentage set forth under the column "Eurodollar Margin",
(iii) Fed Funds Swingline Loans shall be the percentage set forth under
"Eurodollar Margin", (iv) Standby Letter of Credit Fee shall be the percentage
set forth under the Column "Eurodollar Margin" and (v) the Commitment Fee shall
be the percentage set forth under the column "Commitment Fee":
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Pricing Consolidated Total Eurodollar Base Rate Commitment Utilization
Level Leverage Ratio Margin Margin Fee Fee
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I >3.0:1.0 1.750% 0.750% 0.400% 0.250%
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II >2.50:1.0 but <= 3.0:1.0 1.500% 0.500% 0.375% 0.250%
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III >2.0:1.0 but <= 2.50:1.0 1.375% 0.375% 0.350% 0.250%
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IV >1.50:1.0 but <= 2.0:1.0 1.125% 0.125% 0.325% 0.250%
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V <= 1.50:1.0 1.000% 0.000% 0.300% 0.250%
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The Applicable Percentage shall, in each case, be determined and adjusted
quarterly on the date (each an "Interest Determination Date") five (5) Business
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Days after the date by which the Borrower is required to provide the quarterly
or annual compliance certificate and related financial statements in accordance
with the provisions of Sections 7.1(a), (b) and (c), as appropriate; provided
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that:
(i) the initial Applicable Percentages shall be based on the financial
statements and related financial information for fiscal quarter of the Borrower
ended December 31, 2001 and shall remain in effect until the first Interest
Determination Date to occur after the Closing Date, and
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(ii) notwithstanding the foregoing, in the event an annual or quarterly
compliance certificate and related financial statements are not delivered timely
to the Administrative Agent by the date required by Sections 7.1(a), (b) and
(c), as appropriate, the Applicable Percentage, in each case, shall be based on
Pricing Level I until the date five (5) Business Days after such compliance
certificate and related financial statements are delivered to the Administrative
Agent.
Subject to the qualifications set forth above, the Applicable Percentage, in
each case, shall be effective from an Interest Determination Date until the next
Interest Determination Date. The Administrative Agent shall determine the
appropriate Applicable Percentages promptly upon receipt of, and based on the
information contained in, the quarterly or annual compliance certificates and
related financial statements. The Administrative Agent shall promptly notify the
Borrower and the Banks of any change in the Applicable Percentage. Such
determinations by the Administrative Agent shall be conclusive absent manifest
error. Adjustments in the Applicable Percentage shall be effective as to
existing Extensions of Credit as well as new Extensions of Credit made
thereafter.
"Approved Fund" means any Fund that is administered or managed by (a) a
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Bank, (b) an Affiliate of a Bank or (c) an entity or an Affiliate of an entity
that administers or manages a Bank.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
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lead arranger and sole book manager.
"Asset Disposition" shall mean and include the sale, lease or other
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disposition (or the entering into a contract or other agreement that, upon
consummation, will result in the sale, lease or other disposition) of any
Property by any member of the Consolidated Group (including the Capital Stock of
a Subsidiary) other than (A) the sale or other disposition of inventory in the
ordinary course of business, (B) the sale, lease or other disposition of
machinery, equipment and other assets no longer used or useful in the conduct of
such member's business, (C) the sale or financing of Receivables and Receivables
Related Assets pursuant to the terms of a Qualified Receivables Transaction
permitted hereunder and (D) the sale or financing of Receivables and related
documentation (including sales invoices and revolving charge agreements) to
Norwest Financial Leasing, Inc. (and its successor and assigns) in connection
with the Borrower's private-label commercial revolving credit program for
customers.
"Bank of America" means Bank of America, N.A. and its successors.
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"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
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States Code, as amended, modified, succeeded or replaced from time to time.
"Bankruptcy Event" means, with respect to any Person, the occurrence of any
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of the following with respect to such Person: (i) a court or governmental agency
having jurisdiction in the premises shall enter a decree or order for relief in
respect of such Person in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or ordering
the winding up or liquidation of its affairs; or (ii) there shall be commenced
against such Person an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or any case,
proceeding or other action for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of such Person
or for any substantial part of its Property or for the winding up or liquidation
of its affairs, and such involuntary case or other case, proceeding or other
action shall remain undismissed, undischarged or unbonded for a period of sixty
consecutive days; or (iii) such Person shall commence a voluntary case under any
applicable bankruptcy, insolvency or other
7
similar law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the appointment
or taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its Property or make any general assignment for the benefit of creditors; or
(iv) such Person shall be unable to, or shall admit in writing its inability to,
pay its debts generally as they become due.
"Banks" means each Person identified as a "Bank" on the signature pages
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hereto and its successors and assigns.
"Base Rate" means, for any day, a rate per annum equal to the greater of
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(a) the Federal Funds Rate in effect on such day plus 1/2 of 1% or (b) the Prime
Rate in effect on such day. If for any reason the Administrative Agent shall
have determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Federal Funds Rate for any reason, including
the inability of the Administrative Agent to obtain sufficient quotations in
accordance with the terms hereof, the Base Rate shall be determined without
regard to clause (a) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change in the
Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be
effective on the effective date of such change in the Prime Rate or the Federal
Funds Rate, respectively.
"Base Rate Loan" means a Loan that bears interest at a rate based on the
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Base Rate.
"Borrower" means ▇▇▇▇▇ & Minor, Inc., a Virginia corporation, as identified
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in the heading hereof, together with any permitted successors and assigns.
"Borrowing Base" means, at any time, the sum of 85% of Eligible Receivables
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plus 50% of Eligible Inventory, in each case as set forth in the most recent
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Borrowing Base Certificate delivered to the Administrative Agent and the Banks
in accordance with the terms of Section 7.1(c).
"Borrowing Base Certificate" has the meaning set forth in Section 7.1(c).
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"Business Day" means any day other than a Saturday, a Sunday or any other
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day on which banking institutions are required or authorized by law to close in
Richmond, Virginia, Charlotte, North Carolina or New York, New York; except that
in the case of Eurodollar Loans, such day is also a day on which dealings
between banks are carried on in Dollar deposits in the London interbank market.
"Capital Lease" means any lease the payments and obligations with respect
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to which would be required to be capitalized in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, capital stock, (ii)
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in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital
stock, (iii) in the case of a partnership, partnership interests (whether
general or limited), (iv) in the case of a limited liability company, membership
interests and (v) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (i) securities issued or directly and fully
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guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (ii) U.S. dollar denominated
(or foreign currency fully hedged) time
8
deposits, certificates of deposit, Eurodollar time deposits and Eurodollar
certificates of deposit of (y) any domestic commercial bank of recognized
standing having capital and surplus in excess of $500,000,000 or (z) any bank
whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the equivalent thereof
(any such bank being an "Approved Bank"), in each case with maturities of not
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more than 270 days from the date of acquisition, (iii) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition and (iv) repurchase agreements with a bank or
trust company (including a Bank) or a recognized securities dealer having
capital and surplus in excess of $500,000,000 for direct obligations issued by
or fully guaranteed by the United States of America in which the Borrower shall
have a perfected first priority security interest (subject to no other Liens)
and having, on the date of purchase thereof, a fair market value of at least
100% of the amount of the repurchase obligations.
"Change of Control" means (i) any Person or two or more Persons acting in
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concert shall have acquired beneficial ownership, directly or indirectly, of
Voting Stock of the Borrower (or other securities convertible into such Voting
Stock) representing 35% or more of the combined voting power of all Voting Stock
of the Borrower, (ii) during any period of up to 24 consecutive months,
commencing after the Closing Date, individuals who at the beginning of such 24
month period were directors of the Borrower cease to constitute a majority of
the board of directors of the Borrower and such event is a result (directly or
indirectly) of the acquisition of 5% or more of the combined voting power of the
Voting Stock by a Person or Persons who did not own at least 5% or more of the
combined voting power of the Voting Stock as of the Closing Date or (iii) any
Person or two or more Persons acting in concert shall have acquired by contract
or otherwise, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of, control over Voting
Stock of the Borrower (or other securities convertible into such securities)
representing 35% or more of the combined voting power of all Voting Stock of the
Borrower. As used herein, "beneficial ownership" shall have the meaning provided
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in Rule 13d-3 of the Securities and Exchange Commission under the Securities and
Exchange Act of 1934.
"Closing Date" means the date hereof.
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"Commitments" means the Revolving Commitments, the Swingline Commitment and
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the LOC Commitment.
"Commitment Fee" shall have the meaning assigned to such term in Section
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3.5(a).
"Commitment Period" means the period from and including the Closing Date to
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but not including the earlier of (i) the Termination Date, or (ii) the date on
which the Commitments shall terminate in accordance with the provisions of this
Credit Agreement.
"Consolidated Current Assets" means, as of any date, the sum of (a) the
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total amount of current assets of the members of the Consolidated Group on a
consolidated basis determined in accordance with GAAP and (b) to the extent not
included in the foregoing clause (a), the aggregate net book value of all
Receivables transferred to a Securitization Subsidiary or other Person in
connection with a Qualified Securitization Transaction.
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"Consolidated Current Liabilities" means, as of any date, the total amount
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of current liabilities of the members of the Consolidated Group on a
consolidated basis determined in accordance with GAAP.
"Consolidated Current Ratio" means, as of any date, the ratio of
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Consolidated Current Assets on such date to Consolidated Current Liabilities on
such date.
"Consolidated EBITDA" means, for any period, the sum of (a) Consolidated
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Net Income for such period plus (b) to the extent deducted in determining net
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income for such period, (i) Consolidated Interest Expense, (ii) taxes, and (iii)
depreciation and amortization, in each case for the members of the Consolidated
Group on a consolidated basis as determined in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, as of the end of any
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fiscal quarter of the Borrower, the ratio of Consolidated Net Income Available
for Fixed Charges for the period of four consecutive fiscal quarters ending on
such date to Consolidated Fixed Charges for the period of four consecutive
fiscal quarters ending on such date.
"Consolidated Fixed Charges" means, for any period, without duplication,
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the sum of (i) all Consolidated Interest Expense during such period, (ii) all
Consolidated Rent Expense payable during such period, (iii) current maturities
of Funded Debt during such period, and (iv) all dividends and other payments or
distributions on the Capital Stock of a member of the Consolidated Group (other
than (A) dividends or distributions payable in the same class of Capital Stock
of such member of the Consolidated Group and (B) payments described in clauses
(ii) and (iii) of the definition of "Restricted Payments"), in each case for the
members of the Consolidated Group on a consolidated basis determined in
accordance with GAAP.
"Consolidated Group" means the Borrower and its Subsidiaries.
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"Consolidated Interest Expense" means, for any period, all interest
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expense, including the amortization of debt discount and premium, the interest
component under Capital Leases and the implied interest component under
Securitization Transactions (including, without limitation, the discount in
connection with the sale of Receivables and Receivables Related Assets in
connection with a Qualified Securitization Transaction), in each case for the
members of the Consolidated Group on a consolidated basis determined in
accordance with GAAP. For purposes hereof, Consolidated Interest Expense shall
include distributions paid on the Preferred Securities (but without duplication
for interest payable under the Junior Subordinated Debentures).
"Consolidated Net Income" means, for any period, the net income (or loss)
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of the members of the Consolidated Group on a consolidated basis determined in
accordance with GAAP, but excluding for purposes of determining compliance with
the Consolidated Fixed Charge Coverage Ratio, the Consolidated Senior Leverage
Ratio and the Consolidated Total Leverage Ratio:
(a) any extraordinary gains or losses and any taxes on such excluded gains
and any tax deductions or credits on account of any such excluded losses;
(b) net earnings of any business entity (other than a Subsidiary) in which
any member of the Consolidated Group has an ownership interest unless such net
earnings shall have actually been received by such member of the Consolidated
Group in the form of cash distributions; and
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(c) any portion of the net earnings of any Subsidiary which for any reason
is unavailable for payment of dividends to the members of the Consolidated
Group.
"Consolidated Net Income Available for Fixed Charges" means, for any
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period, the sum of (a) Consolidated EBITDA for such period plus (b) Consolidated
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Rent Expense for such period minus (v) Consolidated Capital Expenditures for
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such period.
"Consolidated Net Worth" means total stockholders' equity for the members
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of the Consolidated Group on a consolidated basis as determined in accordance
with GAAP (but including, for purposes hereof, without duplication, the
Preferred Securities and the Indebtedness evidenced by the Junior Subordinated
Debentures and excluding, for purposes hereof, "accumulated other comprehensive
income" as such term is defined in Financial Accounting Standards Board
Statement 130).
"Consolidated Rent Expense" means, for any period, all fixed payments
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(including as such all payments which the lessee is obligated to make to the
lessor on termination of the lease or surrender of the leased property) payable
by any member of the Consolidated Group, as lessee or sublessee under a lease of
real or personal property, determined on a consolidated basis in accordance with
GAAP, but shall be exclusive of (a) any amounts required to be paid by such
Person (whether designated as rents or additional rents) on account of
maintenance, repairs, insurance, taxes and similar charges, determined on a
consolidated basis in accordance with GAAP, and (b) any amounts payable by a
member of the Consolidated Group to another member of the Consolidated Group.
Fixed rents under any so-called "percentage leases" shall be computed solely on
the basis of the minimum rents, if any, required to be paid by the lessee
regardless of sales volume or gross revenues.
"Consolidated Senior Debt" means, as of any date, Consolidated Total Debt
------------------------
less Subordinated Debt of the members of the Consolidated Group on a
consolidated basis determined in accordance with GAAP.
"Consolidated Senior Leverage Ratio" means, as of the end of any fiscal
----------------------------------
quarter of the Borrower, the ratio of Consolidated Senior Debt on such date to
Consolidated EBITDA for the period of four consecutive fiscal quarters ending on
such date.
"Consolidated Total Assets" means, as of any date, the sum of (a) all items
-------------------------
which would be classified as assets of the members of the Consolidated Group on
a consolidated basis determined in accordance with GAAP and (b) to the extent
not included in the foregoing clause (a), the aggregate net book value of all
Receivables transferred to a Securitization Subsidiary or other Person in
connection with a Qualified Securitization Transaction.
"Consolidated Total Debt" means, as of any date, all Funded Debt of the
-----------------------
members of the Consolidated Group on a consolidated basis determined in
accordance with GAAP.
"Consolidated Total Leverage Ratio" means, as of the end of any fiscal
---------------------------------
quarter of the Borrower, the ratio of Consolidated Total Debt on such date to
Consolidated EBITDA for the period of four consecutive fiscal quarters ending on
such date.
"Credit Documents" means this Credit Agreement, the Notes, any Joinder
----------------
Agreement, the Administrative Agent's Fee Letter and all other related
agreements and documents issued or delivered hereunder or thereunder or pursuant
hereto or thereto (in each case as the same may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time).
11
"Credit Party" means any of the Borrower and the Guarantors.
------------
"Default" means any event, act or condition which with notice or lapse of
-------
time, or both, would constitute an Event of Default.
"Defaulting Bank" means, at any time, any Bank that, at such time, (i) has
---------------
failed to make a Loan or purchase a Participation Interest required pursuant to
the terms of this Credit Agreement, (ii) has failed to pay by the date when due
to the Administrative Agent or any Bank an amount owed by such Bank pursuant to
the terms of the Credit Agreement or any other of the Credit Documents, or (iii)
has been deemed insolvent or has become subject to a bankruptcy or insolvency
proceeding or with respect to which (or with respect to any of the Property of
which) a receiver, trustee or similar official has been appointed.
"Dollars " and "$" means dollars in lawful currency of the United States of
------- -
America.
"Domestic Credit Party" means any Credit Party that is incorporated or
---------------------
organized under the laws of any State of the United States or the District of
Columbia.
"Domestic Person" means any Person that is incorporated or organized under
---------------
the laws of any State of the United States or the District of Columbia.
"Domestic Property" means any Property that is located within the United
-----------------
States of America.
"Domestic Subsidiary" means any Subsidiary that is incorporated or
-------------------
organized under the laws of any State of the United States or the District of
Columbia.
"Eligible Assignee" means (a) a Bank; (b) an Affiliate of a Bank (other
-----------------
than an Affiliate which is a Non-U.S. Person); (c) an Approved Fund (other than
an Approved Fund which is a Non-U.S. Person); and (d) any other Person (other
than a natural Person) approved by the Administrative Agent and, unless an Event
of Default has occurred and is continuing at the time of the assignment, the
Borrower (such approval by the Borrower and the Administrative Agent not to be
unreasonably withheld or delayed and such approval to be deemed given by the
Borrower if no objection is received by the Administrative Agent from the
Borrower within two Business Days after notice of the proposed assignment has
been provided by the Administrative Agent to the Borrower), provided, however,
-------- -------
that neither the Borrower nor any Affiliate of the Borrower shall qualify as an
Eligible Assignee. The parties hereto agree that it is reasonable for the
Borrower to withhold its approval of an assignment to a Non-U.S. Person if such
Non-U.S. Person does not provide to the Borrower certification as to complete
exemption from deduction or withholding of Taxes in accordance with Section 3.11
(and the approval of the Borrower shall not be deemed given by the Borrower to
an assignment to a Non-U.S. Person if such Non-U.S. Person does not provide to
the Borrower certification as to complete exemption from deduction or
withholding of Taxes in accordance with Section 3.11).
"Eligible Inventory" means, as of any date of determination, the aggregate
------------------
book value (based on a FIFO valuation) of all inventory of the Borrower and its
Domestic Subsidiaries on a consolidated basis after deducting allowances or
reserves relating thereto, as shown on the books and records of the Borrower and
its Domestic Subsidiaries.
12
"Eligible Receivables" means, as of any date of determination, the
--------------------
aggregate net book value of all accounts, accounts receivable, receivables, and
obligations for payment created or arising from the sale of inventory or the
rendering of services in the ordinary course of business, whether evidenced by
chattel paper, instruments or otherwise ("Receivables"), owned by or owing to
-----------
the Borrower and its Domestic Subsidiaries on a consolidated basis after
deducting allowances or reserves relating thereto, as shown on the books and
records of Borrower and its Domestic Subsidiaries (but excluding, in any event,
without duplication, the aggregate net book value of all Receivables transferred
to a Securitization Subsidiary or other Person in connection with a Qualified
Securitization Transaction).
"Equity Transaction" means, with respect to any member of the Consolidated
------------------
Group, any issuance or sale of shares of its Capital Stock, other than (i) an
issuance in connection with a conversion of debt securities to equity, (ii) an
issuance in connection with exercise by a present or former employee, officer or
director under a stock incentive plan, stock option plan or other equity-based
compensation plan or arrangement, (iii) the conversion of Preferred Securities
into common stock of the Borrower, and (iv) an issuance of the Capital Stock of
the Borrower in connection with an Acquisition permitted hereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity which is under common control with the
---------------
Borrower within the meaning of Section 4001(a)(14) of ERISA, or is a member of a
group which includes the Borrower and which is treated as a single employer
under Sections 414(b) or (c) of the Internal Revenue Code.
"ERISA Event" means (i) with respect to any Plan, the occurrence of a
-----------
Reportable Event or the substantial cessation of operations (within the meaning
of Section 4062(e) of ERISA); (ii) the withdrawal by the Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it was a
substantial employer (as such term is defined in Section 4001(a)(2) of ERISA),
or the termination of a Multiple Employer Plan; (iii) the distribution of a
notice of intent to terminate or the actual termination of a Plan pursuant to
Section 4041(a)(2) or 4041A of ERISA; (iv) the institution of proceedings to
terminate or the actual termination of a Plan by the PBGC under Section 4042 of
ERISA; (v) any event or condition which could reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan; (vi) the complete or partial
withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer Plan;
(vii) the conditions for imposition of a lien under Section 302(f) of ERISA
against the Borrower or any ERISA Affiliate exist with respect to any Plan; or
(viii) the adoption of an amendment to any Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA.
"Eurodollar Loan" means a Loan that bears interest at a rate based on the
---------------
Eurodollar Rate.
"Eurodollar Rate" means, for any Eurodollar Loan for any Interest Period
---------------
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Administrative Agent to be equal to the quotient
obtained by dividing (a) the Interbank Offered Rate for such Eurodollar Loan for
such Interest Period by (b) 1 minus the Eurodollar Reserve Requirement for such
Eurodollar Loan for such Interest Period.
13
"Eurodollar Reserve Requirement" means, at any time, the maximum rate at
------------------------------
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) by member banks of the Federal Reserve System
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Eurodollar Reserve Requirement
shall reflect any other reserves required to be maintained by such member banks
with respect to (i) any category of liabilities which includes deposits by
reference to which the Eurodollar Rate is to be determined, or (ii) any category
of extensions of credit or other assets which include Eurodollar Loans. The
Eurodollar Rate shall be adjusted automatically on and as of the effective date
of any change in the Eurodollar Reserve Requirement.
"Event of Default" shall have the meaning assigned to such term in Section
----------------
9.1.
"Extension of Credit" means, as to any Bank, the making of, or
-------------------
participation in, a Loan by such Bank (including continuations and conversions
thereof) or the issuance or extension of, or participation in, a Letter of
Credit by such Bank.
"Fed Funds Swingline Loan" means a Swingline Loan that bears interest at a
------------------------
rate based on the Applicable Federal Funds Rate.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
------------------
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
--------
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"Fees" means all fees payable pursuant to Section 3.5.
----
"Foreign Person" means any Person that is not a Domestic Person.
--------------
"Foreign Property" means any Property that is not a Domestic Property.
----------------
"Fund" means any Person (other than a natural Person) that is (or will be)
----
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Funded Debt" means, with respect to any Person, without duplication, (i)
-----------
the principal amount of all obligations of such Person for borrowed money, (ii)
the principal amount of all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, or upon which interest payments are
customarily made, (iii) the principal amount of all Support Obligations of such
Person with respect to Funded Debt of another Person, (iv) the maximum stated
amount of all standby letters of credit issued or bankers' acceptances
facilities created for the account of such Person and, without duplication, all
drafts drawn thereunder to the extent unreimbursed (other than letters of credit
(A) supporting other Indebtedness of such Person or (B) offset by a like amount
of cash or government securities pledged or held in escrow to secure such letter
of credit and draws thereunder), (v) the principal amount of all
14
purchase money Indebtedness (including for purposes hereof, indebtedness and
obligations in respect of conditional sale or title retention arrangements
described in clause (j) of the definition of "Indebtedness" and obligations in
respect of the deferred purchase price of property or services described in
clause (c) of the definition of "Indebtedness") of such Person, including
without limitation the principal portion of all obligations of such Person under
Capital Leases, (vi) the principal amount of all Funded Debt of another Person
secured by a Lien on any Property of such Person, whether or not such Funded
Debt has been assumed, provided that for purposes hereof the amount of such
--------
Funded Debt shall be limited to the amount of such Funded Debt as to which there
is recourse to such Person or the fair market value of the property which is
subject to the Lien, if less, (vii) the aggregate net amount of Indebtedness or
obligations relating to the sale, contribution or other conveyance of accounts
receivable (or similar transaction) (exclusive of intercompany obligations owing
between the Securitization Subsidiary and a Credit Party pursuant to a Qualified
Securitization Transaction permitted hereunder) regardless of whether such
transaction is effected without recourse or in a manner which would not be
reflected on a balance sheet in accordance with GAAP, (viii) the principal
balance outstanding under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product where such
transaction is considered borrowed money indebtedness for tax purposes but is
classified as an operating lease under GAAP, and (ix) the maximum amount of all
contingent obligations (including, without limitation, obligations to make
earn-out payments) of such Person incurred in connection with Acquisitions
permitted under Section 8.4 and Acquisitions consummated prior to the Closing
Date. The Funded Debt of any Person shall include the Funded Debt of any
partnership or joint venture in which such Person is a general partner or joint
venturer, but only to the extent to which there is recourse to such Person for
the payment of such Funded Debt. For purposes hereof, Funded Debt shall also
include payments in respect of Funded Debt which constitute current liabilities
of the obligor under GAAP but shall exclude the Preferred Securities and the
Indebtedness evidenced by the Junior Subordinated Debentures.
"GAAP" means generally accepted accounting principles in the United States
----
applied on a consistent basis and subject to the terms of Section 1.3.
"Government Acts" has the meaning set forth in Section 2.6(h).
---------------
"Governmental Authority" means any federal, state, local or foreign court
----------------------
or governmental agency, authority, instrumentality or regulatory body.
"Guarantor" means each Domestic Subsidiary identified as a "Guarantor" on
---------
the signature pages hereto and each Additional Credit Party, together with their
successors and permitted assigns.
"Hedging Agreements" means any interest rate protection agreement or
------------------
foreign currency exchange agreement.
"Indebtedness" means, with respect to any Person, without duplication, (a)
------------
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (c) all obligations of such Person
issued or assumed as the deferred purchase price of Property or services
purchased by such Person which would appear as liabilities on a balance sheet of
such Person in accordance with GAAP, (d) all Support Obligations of such Person
with respect to Indebtedness of another Person, (e) the maximum stated amount of
all standby letters of credit issued or bankers' acceptances facilities created
for the account of such Person and, without duplication, all drafts drawn
thereunder to the extent unreimbursed (other than letters of credit (i)
supporting other Indebtedness of such Person or (ii) offset by a like amount of
cash or government securities pledged or held in escrow to secure such letter of
credit and draws thereunder), (f)
15
the principal portion of all obligations of such Person under Capital Leases,
(g) all Indebtedness of another Person secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on, or payable out of the proceeds of production from, Property
owned or acquired by such Person, whether or not the obligations secured thereby
have been assumed, provided that for purposes hereof the amount of such
--------
Indebtedness shall be limited to the amount of such Indebtedness as to which
there is recourse to such Person or the fair market value of the Property which
is subject to the Lien, if less, (h) all obligations of such Person under
take-or-pay or similar arrangements or under commodities agreements, (i) all
obligations of such Person under interest rate protection agreements and foreign
currency exchange agreements (including, without limitation, Hedging
Agreements), (j) all obligations of such Person under conditional sale or other
title retention agreements relating to Property purchased by such Person (other
than customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business), (k) all preferred
stock issued by such Person and which by the terms thereof could be (at the
request of the holders thereof or otherwise) subject to mandatory sinking fund
payments, redemption or other acceleration at any time prior to the Termination
Date, (l) the aggregate net amount of Indebtedness or obligations relating to
the sale, contribution or other conveyance of accounts receivable (or similar
transaction) (exclusive of intercompany obligations owing between the
Securitization Subsidiary and a Credit Party pursuant to a Qualified
Securitization Transaction permitted hereunder) regardless of whether such
transaction is effected without recourse or in a manner which would not be
reflected on a balance sheet in accordance with GAAP, (m) the principal portion
of all obligations of such Person under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing
product where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease under GAAP, (n) the
Indebtedness of any partnership or unincorporated joint venture in which such
Person is a general partner or a joint venturer, but only to the extent to which
there is recourse to such Person for the payment of such Indebtedness, and (o)
the maximum amount of all contingent obligations (including, without limitation,
obligations to make earn-out payments) of such Person incurred in connection
with Acquisitions permitted under Section 8.4 and Acquisitions consummated prior
to the Closing Date. For purposes hereof, Indebtedness shall also include
payments in respect of Indebtedness which constitute current liabilities of the
obligor under GAAP. The Indebtedness of any Person shall not include (a) trade
debt incurred in the ordinary course of business and due within twelve months of
the incurrence thereof, (b) accrued expenses and (c) accrued pension and
retirement plan liabilities to the extent such liabilities would not appear as
debt on a balance sheet of such Person in accordance with GAAP.
"Indemnitee" has the meaning set forth in Section 11.5(b).
----------
"Indemnified Party" has the meaning set forth in Section 11.5(b).
-----------------
"Interbank Offered Rate" means, for any Eurodollar Loan for any Interest
----------------------
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100th of one percent (0.01%)) in each case determined by the
Administrative Agent to be equal to:
(a) the offered rate that appears on the Dow ▇▇▇▇▇ Telerate Screen
Page 3750 (or any successor page) that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for delivery
on the first day of the applicable Interest Period) for a term equivalent
to the applicable Interest Period at approximately 11:00 A.M. (London,
England time) two Business Days prior to the first day of the applicable
Interest Period; or
(b) if for any reason the foregoing rate in clause (a) is unavailable
or undeterminable, the offered rate on such other page or other service
that displays an average
16
British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of the applicable Interest Period)
for a term equivalent to the applicable Interest Period at approximately
11:00 A.M. (London, England time) two Business Days prior to the first day
of the applicable Interest Period; or
(c) if for any reason the foregoing rates in clauses (a) and (b) are
unavailable or undeterminable, the rate of interest at which deposits in
Dollars for delivery on the first day of the applicable Interest Period in
same day funds in the approximate amount of the applicable Eurodollar Loan
for a term equivalent to the applicable Interest Period would be offered by
the London branch of Bank of America to major banks in the offshore Dollar
market at approximately 11:00 A.M. (London, England time) two Business Days
prior to the first day of the applicable Interest Period.
"Interest Determination Date" shall have the meaning assigned to such term
---------------------------
in the definition of "Applicable Percentage".
"Interest Payment Date" means (i) as to Base Rate Loans and Fed Funds
---------------------
Swingline Loans, the last day of each March, June, September and December and
the Termination Date, and (ii) as to Eurodollar Loans, on the last day of each
Interest Period for such Loan, the date of repayment and on the Termination
Date, and in addition where the applicable Interest Period is more than 3
months, then also on the date 3 months from the beginning of the Interest
Period, and each 3 months thereafter. If an Interest Payment Date falls on a
date which is not a Business Day, such Interest Payment Date shall be deemed to
be the next succeeding Business Day, except that in the case of Eurodollar Loans
where the next succeeding Business Day falls in the next succeeding calendar
month, then on the next preceding Business Day.
"Interest Period" means, with respect to Eurodollar Loans, a period of one,
---------------
two, three or six months' duration, and also as to Eurodollar Loans of up to
$30,000,000, a period of 7-days' duration (provided that no more than one such
--------
Revolving Loan with a 7-day Interest Period may be outstanding at any time), as
the Borrower may elect, commencing in each case on the date of the borrowing
(including conversions, extensions and renewals); provided, however, (A) if any
-------- -------
Interest Period would end on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day (except that where
the next succeeding Business Day falls in the next succeeding calendar month,
then on the next preceding Business Day), (B) no Interest Period shall extend
beyond the Termination Date and (C) where an Interest Period begins on a day for
which there is no numerically corresponding day in the calendar month in which
the Interest Period is to end, such Interest Period shall end on the last day of
such calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended, and any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to time.
References to sections of the Internal Revenue Code shall be construed also to
refer to any successor sections.
"Investment" in any Person means (a) the acquisition (whether for cash,
----------
property, services, assumption of Indebtedness, securities or otherwise) of
Capital Stock, bonds, notes, debentures, partnership, joint ventures or other
ownership interests or other securities of such other Person, (b) any deposit
with, or advance, loan or other extension of credit to, such Person (other than
deposits made in connection with the purchase of equipment or other assets in
the ordinary course of business) or (c) any other capital contribution to or
investment in such Person, including, without limitation, any Support
Obligations
17
(including any support for a letter of credit issued on behalf of such Person)
incurred for the benefit of such Person, but excluding any Restricted Payment to
such Person.
"Issuing Bank" means Bank of America and its successors in such capacity.
------------
"Joinder Agreement" means a Joinder Agreement substantially in the form of
-----------------
Schedule 7.11 executed and delivered by an Additional Credit Party in accordance
-------------
with the provisions of Section 7.11.
"Junior Subordinated Debentures" means the junior subordinated convertible
------------------------------
deferrable interest debentures issued by the Borrower pursuant to that Junior
Subordinated Indenture dated May 13, 1998, the interest payments on which are
used to make cash distributions on Preferred Securities.
"Letter of Credit" means any standby letter of credit issued by the Issuing
----------------
Bank for the account of the Borrower in accordance with the terms of Section
2.1(c).
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference or priority or charge of any kind (including any agreement to give
any of the foregoing, any conditional sale or other title retention agreement,
any financing or similar statement or notice filed under the Uniform Commercial
Code as adopted and in effect in the relevant jurisdiction or other similar
recording or notice statute, and any lease in the nature thereof) securing or
purporting to secure any Indebtedness.
"Loans" means the Revolving Loans and the Swingline Loans, and the Base
-----
Rate Loans, Eurodollar Loans and Fed Funds Swingline Loans comprising such
Loans.
"LOC Commitment" means, with respect to the Issuing Bank, the commitment of
--------------
the Issuing Bank to issue Letters of Credit in an aggregate face amount at any
time outstanding (together with the amounts of any unreimbursed drawings
thereon) of up to the LOC Committed Amount and, with respect to the Banks, the
commitment of each Bank to purchase participation interests in the LOC
Obligations up to its Revolving Commitment Percentage of the LOC Committed
Amount as provided in Section 2.6(b).
"LOC Committed Amount" shall have the meaning assigned to such term in
--------------------
Section 2.1(c).
"LOC Documents" means, with respect to any Letter of Credit, such Letter of
-------------
Credit, any amendments thereto, any documents delivered in connection therewith,
any application therefor, and any agreements, instruments, guarantees or other
documents (whether general in application or applicable only to such Letter of
Credit) governing or providing for (i) the rights and obligations of the parties
concerned or at risk or (ii) any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the maximum amount
---------------
which is, or at any time thereafter may become, available to be drawn under
Letters of Credit then outstanding, assuming compliance with all requirements
for drawings referred to in such Letters of Credit plus (ii) the aggregate
amount of all drawings under Letters of Credit honored by the Issuing Bank but
not theretofore reimbursed by the Borrower.
"Material Adverse Effect" means a material adverse effect on (i) the
-----------------------
operations or financial condition of the members of the Consolidated Group,
taken as a whole, (ii) the ability of any Credit Party to perform its
obligations under the Credit Documents, (iii) the validity or enforceability of
any Credit Document or (iv) the rights and remedies of the Banks under the
Credit Documents.
18
"Material Guarantor" means any Guarantor that, individually, (i) accounts
------------------
for more than five percent (5%) of the gross revenues of the members of the
Consolidated Group on a consolidated basis determined in accordance with GAAP,
(ii) accounts for more than five percent (5%) of net income of the members of
the Consolidated Group on a consolidated basis determined in accordance with
GAAP, or (iii) constitutes more than five percent (5%) of Consolidated Total
Assets.
"Materials of Environmental Concern" means any gasoline or petroleum
----------------------------------
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Laws, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor or
-------
assignee of the business of such company in the business of rating securities.
"Multiemployer Plan" means a Plan which is a "multiemployer plan" as
------------------
defined in Section 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan (other than a Multiemployer Plan)
----------------------
which the Borrower or any ERISA Affiliate and at least one employer other than
the Borrower or any ERISA Affiliate are contributing sponsors.
"Non-Guarantor Subsidiaries" means Domestic Subsidiaries which are not
--------------------------
Guarantors (other than any Securitization Subsidiary and any PS Affiliate).
"Non-U.S. Person" means any Person that is not a United States person
---------------
within the meaning of Section 7701(a)(30) of the Internal Revenue Code.
"Note" or "Notes" means the Revolving Notes, individually or collectively,
---- -----
as appropriate.
"Notice of Revolving Loan Borrowing" shall have the meaning assigned to
----------------------------------
such term in Section 2.2(a)(i).
"Notice of Conversion" shall have the meaning assigned to such term in
--------------------
Section 3.2.
"Notice of Request of Letter of Credit" shall have the meaning assigned to
-------------------------------------
such term in Section 2.2(a)(iii).
"Notice of Swingline Loan Borrowing" shall have the meaning assigned to
----------------------------------
such term in Section 2.2(a)(ii).
"Obligations" means, without duplication, (i) all of the obligations of the
-----------
Borrower to the Banks (including the Issuing Bank) and the Administrative Agent,
whenever arising, under this Credit Agreement, the Notes or any of the other
Credit Documents (including, but not limited to, any interest accruing after the
occurrence of a Bankruptcy Event with respect to any Credit Party, regardless of
whether such interest is an allowed claim under the Bankruptcy Code) and (ii)
all liabilities and obligations, whenever arising, owing from the Borrower to
any Bank, or any affiliate of a Bank, arising under any Hedging Agreement.
19
"O&M Funding Corp" means O&M Funding Corp., a Virginia corporation.
----------------
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant
----
to Subtitle A of Title IV of ERISA and any successor thereof.
"Participation Interest" means the purchase by a Bank of a participation in
----------------------
LOC Obligations as provided in Section 2.6(b), in Swingline Loans as provided in
Section 2.7 and in Loans as provided in Section 3.14.
"Permitted Investments" means Investments which are (i) cash and Cash
---------------------
Equivalents; (ii) receivables owing to any member of the Consolidated Group
created, acquired or made in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; (iii) Investments by
members of the Consolidated Group in and to Domestic Credit Parties; (iv)
Acquisitions permitted under Section 8.4(b)(ii); (v) loans and advances in the
ordinary course of business to officers, directors and employees for expenses
(including moving expenses related to a transfer) incidental to carrying on the
business of the members of the Consolidated Group in an aggregate amount not to
exceed $3,000,000 at any time outstanding; (vi) Investments (including debt
obligations) received in settlement of accounts receivable (created in the
ordinary course of business) from bankrupt obligors and in settlement of
delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business; (vii) investments in a
Securitization Subsidiary or Special Purpose Vehicle relating to a Qualified
Securitization Transaction, (viii) investments in a PS Affiliate of up to
$5,000,000 in the aggregate; and (ix) Investments of a nature not contemplated
in the foregoing subsections in an amount not to exceed $15,000,000 in the
aggregate at any time outstanding.
"Permitted Liens" means:
---------------
(i) Liens created by or arising under the Credit Documents in favor of the
Administrative Agent on behalf of the Banks;
(ii) Liens (other than Liens created or imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or Liens for taxes
being contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established (and as to
which the Property subject to any such Lien is not yet subject to foreclosure,
sale or loss on account thereof);
(iii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and suppliers and other Liens imposed by law or pursuant
to customary reservations or retentions of title arising in the ordinary course
of business, provided that such Liens secure only amounts not yet due and
--------
payable or, if due and payable, are unfiled and no other action has been taken
to enforce the same or are being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance with GAAP have
been established (and as to which the Property subject to any such Lien is not
yet subject to foreclosure, sale or loss on account thereof);
(iv) Liens (other than Liens created or imposed under ERISA) incurred or
deposits made by any member of the Consolidated Group in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);
20
(v) Liens in connection with attachments or judgments (including judgment
or appeal bonds) provided that the judgments secured shall, within 30 days after
--------
the entry thereof, have been discharged or execution thereof stayed pending
appeal, or shall have been discharged within 30 days after the expiration of any
such stay;
(vi) easements, rights-of-way, restrictions (including zoning
restrictions), minor defects or irregularities in title and other similar
charges or encumbrances not, in any material respect, impairing the use of the
encumbered Property for its intended purposes;
(vii) Liens on Property of any Person securing Indebtedness (including
Capital Leases and Synthetic Leases) of a Credit Party to the extent permitted
under Section 8.1(c);
(viii) leases or subleases granted to others not interfering in any
material respect with the business of any member of the Consolidated Group;
(ix) any interest or title of a lessor under, and Liens arising from UCC
financing statements (or equivalent filings, registrations or agreements in
foreign jurisdictions) relating to, leases permitted by this Credit Agreement;
(x) Liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the importation of
goods;
(xi) Liens deemed to exist in connection with Investments in repurchase
agreements which constitute Permitted Investments;
(xii) normal and customary rights of setoff upon deposits of cash in favor
of banks or other depository institutions;
(xiii) Liens created or deemed to exist in connection with a Qualified
Securitization Transaction permitted under this Credit Agreement (including any
related filings of any financing statements), but only to the extent that any
such Lien relates to the applicable Receivables Related Assets actually sold,
contributed, financed or otherwise conveyed or pledged pursuant to such
transaction;
(xiv) Liens of a collection bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection; and
(xv) Liens existing as of the Closing Date and set forth on Schedule 8.2;
------------
provided that no such Lien shall at any time (A) be extended to or cover any
--------
Property other than the Property subject thereto on the Closing Date and (B)
secure any Indebtedness other than the Indebtedness secured thereby on the
Closing Date.
"Person" means any individual, partnership, joint venture, firm,
------
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3) of
----
ERISA) which is subject to Title IV of ERISA and with respect to which the
Borrower or any ERISA Affiliate is (or, if such plan were terminated at such
time, would under Section 4069 of ERISA be deemed to be) an "employer" within
the meaning of Section 3(5) of ERISA.
21
"Preferred Securities" means pass-through securities, capital securities or
--------------------
other preferred securities issued by a statutory business trust or other similar
special purpose entity owned or controlled by any member of the Consolidated
Group the proceeds of which are invested in or exchanged for Junior Subordinated
Debentures.
"Prime Rate" means the rate of interest per annum publicly announced from
----------
time to time by Bank of America as its prime rate in effect at its principal
office in Charlotte, North Carolina, with each change in the Prime Rate shall be
effective on the date such change is publicly announced as effective (it being
understood and agreed that the Prime Rate is a reference rate used by Bank of
America in determining interest rates on certain loans and its not intended to
be the lowest rate of interest charged on any extension of credit by Bank of
America to any debtor).
"Pro Forma Basis" means, for purposes of calculating (utilizing the
---------------
principles set forth in the second paragraph of Section 1.3) the applicable
Pricing Level under the definition of "Applicable Percentage" and determining
compliance with each of the financial covenants set forth in Section 7.10, that
any transaction shall be deemed to have occurred as of the first day of the four
fiscal-quarter period ending as of the most recent fiscal quarter end preceding
the date of such transaction with respect to which the Administrative Agent has
received the annual or quarterly compliance certificate and related financial
statements required by Section 7.1(a), (b) or (c), as appropriate. As used
herein, "transaction" shall mean (i) any merger or consolidation as referred to
-----------
in Section 8.4, (ii) any Asset Disposition as referred to in Section 8.5, (iii)
any Acquisition as referred to in Section 8.4, (iv) any prepayment or redemption
of any Senior Subordinated Notes or Junior Subordinated Notes as referred to in
Section 8.7 and (v) any Restricted Payment referenced in Section 8.12. In
furtherance of the foregoing, in connection with any calculation of the
financial covenants set forth in Section 7.10 upon giving effect to a
transaction on a Pro Forma Basis:
(A) for purposes of any such calculation in respect of any Asset
Disposition referred to in Section 8.5, (1) income statement items (whether
positive or negative) attributable to the Property disposed of in such Asset
Disposition shall be excluded and (2) any Indebtedness which is retired in
connection with such Asset Disposition shall be excluded and deemed to have been
retired as of the first day of the applicable period;
(B) for purposes of any such calculation in respect of any merger or
consolidation referred to in Section 8.4(a) or any Acquisition referred to in
Section 8.4(b), (1) any Indebtedness incurred by any member of the Consolidated
Group in connection with such transaction (x) shall be deemed to have been
incurred as of the first day of the applicable period and (y) if such
Indebtedness has a floating or formula rate, shall have an implied rate of
interest for the applicable period for purposes of this definition determined by
utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination, and (2) income statement
items (whether positive or negative) attributable to the Property acquired in
such transaction or to the Acquisition comprising such transaction, as
applicable, shall be included beginning as of the first day of the applicable
period, provided that such income statement items are factually supportable by
--------
financial statements and information reasonably acceptable to the Administrative
Agent; and
(C) for purposes of any calculation of the Consolidated Senior
Leverage Ratio in respect of any prepayment or redemption of any Senior
Subordinated Notes or Junior Subordinated Notes referred to in Section 8.7, any
Indebtedness incurred by any member of the Consolidated Group in
22
connection with such transaction shall be deemed to have replaced such
Subordinated Debt as of the first day of the applicable period.
"Pro Forma Compliance Certificate" means a certificate of the chief
--------------------------------
financial officer (or its equivalent) of the Borrower delivered to the
Administrative Agent in connection with (i) any merger or consolidation referred
to in Section 8.4(a), (ii) any Asset Disposition referred to in Section 8.5,
(iii) any Acquisition referred to in Section 8.4(b), (iv) any prepayment or
redemption of Senior Subordinated Notes or Junior Subordinated Notes as referred
to in Section 8.7 and (v) any Restricted Payment referenced in Section 8.12, as
applicable, and containing reasonably detailed calculations, upon giving effect
to the applicable transaction on a Pro Forma Basis, of the Consolidated Fixed
Charge Coverage Ratio, the Consolidated Total Leverage Ratio, the Consolidated
Senior Leverage Ratio, the Consolidated Net Worth and the Consolidated Current
Ratio each as of the most recent fiscal quarter end preceding the date of the
applicable transaction with respect to which the Administrative Agent shall have
received the annual or quarterly compliance certificate and related financial
statements required by Section 7.1(a), (b) or (c), as appropriate.
"Property" means any interest in any kind of property or assets, whether
--------
real, personal or mixed, or tangible or intangible.
"PS Affiliate" means any trust or other special purpose entity which is the
------------
issuer of Preferred Securities.
"Qualified Securitization Transaction" means any Securitization Transaction
------------------------------------
provided that (A) no portion of the Indebtedness or any other obligations
(contingent or otherwise) under such Securitization Transaction shall be (i)
recourse to any member of the Consolidated Group other than pursuant to Standard
Securitization Obligations, (ii) supported by Support Obligations of any member
of the Consolidated Group other than pursuant to Standard Securitization
Obligations, or (iii) secured (directly or indirectly, contingently or
otherwise) by any Lien on any Property of any member of the Consolidated Group
other than pursuant to Standard Securitization Obligations, (B) the
Administrative Agent and the Required Banks shall be reasonably satisfied with
the structure thereof and documentation therefor, including the discount at
which such accounts receivable are sold or the advance rate against which
borrowings are advanced and the applicable termination events which shall, in
any event, be consistent with those prevailing in the market for similar
transactions, and (C) the accounts receivable purchase agreement or other
similar agreements relating thereto shall not be amended or modified in a manner
materially adverse to the interests of the Banks (as determined by the
Administrative Agent and the Required Banks in their reasonable discretion
(including, without limitation, any change in (i) the amount of Securitization
Receivables and Receivables Related Assets covered thereby, (ii) the discount
rate at which the Securitization Receivables and Receivables Related Assets are
sold, (iii) the advance rate against which amounts are advanced, and (iv) the
applicable termination events)) except with the prior written consent of the
Administrative Agent and the Required Banks. Notwithstanding the foregoing, the
series of transactions contemplated in the Securitization Agreements, and any
refinancing or replacement thereof on terms and conditions no less favorable to
the members of the Consolidated Group than the terms of the Securitization
Agreements, are Qualified Securitization Transactions.
"Receivables" has the meaning set forth in the definition of "Eligible
-----------
Receivables".
"Receivables Related Assets" means (i) any rights arising under the
--------------------------
documentation governing or relating to any Securitization Receivables (including
rights in respect of Liens securing such Securitization Receivables and other
credit support in respect of such Securitization Receivables), (ii)
23
any proceeds of such Securitization Receivables and any lockboxes or accounts in
which such proceeds are deposited, (iii) spread accounts and other similar
accounts (and any amounts on deposit therein) established in connection with a
Qualified Securitization Transaction, (iv) any warranty, indemnity, dilution and
other intercompany claim arising out of the documentation evidencing any
Qualified Securitization Transaction, and (v) other assets that are customarily
transferred or in respect of which security interests are customarily granted in
connection with asset securitization transactions involving accounts receivable.
"Register" shall have the meaning assigned to such term in Section 11.3(c).
--------
"Regulation D, T, U, or X" means Regulation D, T, U, or X, respectively, of
------------------------
the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof.
"Reportable Event" means any of the events set forth in Section 4043(c) of
----------------
ERISA, other than those events as to which the notice requirement has been
waived by regulation.
"Required Banks" means, at any time, Banks having more than fifty percent
--------------
(50%) of the aggregate Commitments, or if the Commitments have been terminated,
Banks having more than fifty percent (50%) of the aggregate principal amount of
the Revolving Obligations outstanding (taking into account in each case
Participation Interests or obligation to participate therein); provided that the
--------
Commitments of, and outstanding principal amount of Revolving Obligations
(taking into account Participation Interests therein) owing to, a Defaulting
Bank shall be excluded for purposes hereof in making a determination of Required
Banks.
"Responsible Officer" means, with respect to the subject matter of any
-------------------
representation, warranty, covenant, agreement, obligation or certificate of any
Credit Party contained in or delivered pursuant to any of the Credit Documents,
the Chief Executive Officer, the President, any Executive Vice President, Senior
Vice President, Vice President, Chief Financial Officer, Treasurer, Controller,
or any other officer of the Consolidated Group who in the normal performance of
his or her operational responsibilities would have knowledge of such matter and
the requirements with respect thereto.
"Restricted Payment" by any Person means (i) any dividend or other payment
------------------
or distribution, direct or indirect, on account of any shares of any class of
Capital Stock of such Person, now or hereafter outstanding (including without
limitation any payment in connection with any dissolution, merger, consolidation
or disposition involving such Person), or to the holders, in their capacity as
such, of any shares of any class of Capital Stock of such Person, now or
hereafter outstanding (other than dividends or distributions payable in the same
class of Capital Stock of such Person or dividends or distributions payable to
any Credit Party (directly or indirectly through Subsidiaries)), (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of Capital
Stock of such Person, now or hereafter outstanding, and (iii) any payment made
to retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of Capital Stock of such Person, now
or hereafter outstanding.
"Revolving Commitment" means, with respect to each Bank, the commitment of
--------------------
such Bank to make Revolving Loans in an aggregate principal amount outstanding
at any time up to such Bank's Revolving Committed Amount.
24
"Revolving Commitment Percentage" means, with respect to each Bank, a
-------------------------------
fraction (expressed as a percentage) the numerator of which is the Revolving
Committed Amount of such Bank at such time and the denominator of which is the
Aggregate Revolving Committed Amount at such time. The initial Revolving
Commitment Percentage of each Bank is set forth on Schedule 2.1.
------------
"Revolving Committed Amount" means, with respect to each Bank, the amount
--------------------------
of such Bank's Revolving Commitment, as such amount may from time to time be
reduced in accordance with the provisions hereof. The initial Revolving
Committed Amount of each Bank is set forth on Schedule 2.1.
------------
"Revolving Loans" shall have the meaning assigned to such term in Section
---------------
2.1(a).
"Revolving Note" means the promissory notes of the Borrower in favor of
--------------
each of the Banks evidencing the Revolving Loans and Swingline Loans in
substantially the form attached as Schedule 2.5, individually or collectively,
------------
as appropriate, as such promissory notes may be amended, modified, supplemented,
extended, renewed or replaced from time to time.
"Revolving Obligations" the Revolving Loans, the Swingline Loans and the
---------------------
LOC Obligations.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw Hill
---
Companies, Inc., and any successor thereof.
"Securitization Agreements" means (a) (i) the Receivables Sale Agreement
-------------------------
dated as of April 30, 2002 among the Borrower, ▇▇▇▇▇ & Minor Medical, Inc.,
▇▇▇▇▇ & Minor Distribution, Inc. and O&M Funding Corp. and (ii) the Receivables
Purchase Agreement dated as of April 30, 2002 among O&M Funding Corp., ▇▇▇▇▇ &
Minor Medical, Inc., Blue Ridge Asset Funding Corporation, Blue Keel Funding,
L.L.C., Wachovia Bank, National Association, and Fleet Securities, Inc., and (b)
such other agreements and documents executed or delivered under or in connection
with the aforementioned agreements, as any such agreement referred to in clauses
(a) and (b) may be amended, supplemented or otherwise modified from time to time
after the Closing Date.
"Securitization Receivables" shall have the meaning given to such term in
--------------------------
the definition of "Securitization Transaction".
"Securitization Subsidiary" means (a) O&M Funding Corp. and (b) any other
-------------------------
wholly owned Subsidiary which engages in no activities other than those
reasonably related to or in connection with the entering into of Securitization
Transactions and which is designated by the board of directors of the Borrower
(as provided below) as a Securitization Subsidiary; provided that no member of
--------
the Consolidated Group (i) shall provide credit support to such Securitization
Subsidiary, (ii) shall have any contract, agreement, arrangement or
understanding with such Securitization Subsidiary other than on terms that are
fair and reasonable and that are no less favorable to such member of the
Consolidated Group than could be obtained from an unrelated Person (other than
representations, warranties and covenants (including those relating to
servicing) entered into in the ordinary course of business in connection with a
Qualified Securitization Transaction and intercompany notes relating to the sale
of Securitization Receivables to such Securitization Subsidiary) and (iii) no
member of the Consolidated Group shall have any obligation to maintain or
preserve such Securitization Subsidiary's financial condition or to cause such
Securitization Subsidiary to achieve certain levels of operating results. Any
such designation by the board of directors of the Borrower (other than with
respect to O&M Funding Corp.) shall be evidenced to the Administrative Agent and
each Bank by filing with the Administrative
25
Agent and each Bank a certified copy of the resolutions of the board of
directors of the Borrower giving effect to such designation.
"Securitization Transaction" means any financing transaction or series of
--------------------------
financing transactions that have been or may be entered into by a member of the
Consolidated Group pursuant to which such member of the Consolidated Group may
sell, convey or otherwise transfer to any Person (including, without limitation,
a Securitization Subsidiary) or may grant a security interest in any accounts
receivable, notes receivable, rights to future lease payments or residuals or
other similar rights to payment (the "Securitization Receivables") (whether such
--------------------------
Securitization Receivables are then existing or arising in the future) of such
member of the Consolidated Group, and any assets related thereto, including
without limitation, all security interests in merchandise or services financed
thereby, the proceeds of such Securitization Receivables, and other assets which
are customarily sold or in respect of which security interests are customarily
granted in connection with securitization transactions involving such assets.
"Senior Subordinated Notes" means those $200,000,000 8.5% Senior
-------------------------
Subordinated Notes of the Borrower due 2011.
"Single Employer Plan" means any Plan which is not a Multiemployer Plan or
--------------------
a Multiple Employer Plan.
"Special Purpose Vehicle" means a trust, partnership or other entity
-----------------------
established by any member of the Consolidated Group to implement a Qualified
Securitization Transaction.
"Standard Securitization Obligations" means representations, warranties,
-----------------------------------
covenants, indemnities and other obligations entered into by any member of the
Consolidated Group which are reasonably customary in asset securitization
transactions involving accounts receivable.
"Standby Letter of Credit Fee" shall have the meaning assigned to such term
----------------------------
in Section 3.5(c)(i).
"Subordinated Debt" means (i) the Indebtedness evidenced by the Senior
-----------------
Subordinated Notes, (ii) the Indebtedness evidenced by the Junior Subordinated
Debentures and (iii) any other Indebtedness which by its terms is specifically
subordinated in right of payment to the prior payment of the Obligations on
terms and conditions which are, and evidenced by documentation which is,
satisfactory to the Required Banks.
"Subsidiary" means, as to any Person, (i) any corporation more than 50% of
----------
whose stock of any class or classes having by the terms thereof ordinary voting
power to elect a majority of the directors of such corporation (irrespective of
whether or not at the time, any class or classes of such corporation shall have
or might have voting power by reason of the happening of any contingency) is at
the time owned by such Person directly or indirectly through Subsidiaries, and
(ii) any partnership, association, joint venture or other entity in which such
person directly or indirectly through Subsidiaries has more than 50% equity
interest at any time. Except as otherwise expressly provided, all references
herein to "Subsidiary" shall mean a Subsidiary of the Borrower; provided,
--------
however, that any Special Purpose Vehicle shall not be considered to be a
-------
Subsidiary of the Borrower for purposes of this Credit Agreement.
"Support Obligations" means, with respect to any Person, without
-------------------
duplication, any obligations of such Person (other than (i) endorsements in the
ordinary course of business of negotiable instruments for deposit or collection
and (ii) Standard Securitization Obligations relating to Qualified
Securitization Transactions) guaranteeing or intended to guarantee any
Indebtedness of any other Person in any manner,
26
whether direct or indirect, and including without limitation any obligation,
whether or not contingent, (i) to purchase any such Indebtedness or any Property
constituting security therefor, (ii) to advance or provide funds or other
support for the payment or purchase of any such Indebtedness or to maintain
working capital, solvency or other balance sheet condition of such other Person
(including without limitation keep well agreements, maintenance agreements,
comfort letters or similar agreements or arrangements) for the benefit of any
holder of Indebtedness of such other Person, (iii) to lease or purchase
Property, securities or services primarily for the purpose of assuring the
holder of such Indebtedness against loss in respect thereof, or (iv) to
otherwise assure or hold harmless the holder of such Indebtedness against loss
in respect thereof. The amount of any Support Obligation hereunder shall
(subject to any limitations set forth therein) be deemed to be an amount equal
to the outstanding principal amount (or maximum principal amount, if larger) of
the Indebtedness in respect of which such Support Obligation is made.
"Swingline Bank" means Bank of America and its successors in such capacity.
--------------
"Swingline Commitment" means, with respect to the Swingline Bank, the
--------------------
commitment of the Swingline Bank to make Swingline Loans in an aggregate
principal amount at any time outstanding up to the Swingline Committed Amount
and, with respect to the Banks, the commitment of each Bank to purchase
participation interests in the Swingline Loans up to its Revolving Commitment
Percentage of the Swingline Committed Amount as provided in Section 2.7.
"Swingline Committed Amount" shall have the meaning assigned to such term
--------------------------
in Section 2.1(b).
"Swingline Loans" shall have the meaning given to such term in Section
---------------
2.1(b).
"Termination Date" means the earlier of (i) April 30, 2005 or such later
----------------
date as to which all of the Banks may in their sole discretion by written
consent agree or (ii) the date on which the Commitments terminate in accordance
with the provisions of this Credit Agreement. . "Threshold Requirement" shall
have the meaning assigned to such term in Section 7.11(a).
"Total Consideration" means cash and non-cash consideration, any assumption
-------------------
of Indebtedness, the maximum amount of any contingent payment (including,
without limitation, earn-out payments) and the fair value of any Capital Stock
of the Borrower issued to the seller of the Capital Stock or Property acquired
in an Acquisition.
"Utilization Fee" shall have the meaning assigned to such term in Section
---------------
3.5(b).
"Voting Stock" means, with respect to any Person, the voting stock or other
------------
securities of any class or classes, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
Persons performing similar functions) of such Person, even though the right so
to vote has been suspended by the happening of such a contingency.
1.2 Computation of Time Periods.
---------------------------
For purposes of computation of periods of time hereunder, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding."
27
1.3 Accounting Terms.
----------------
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Banks hereunder
shall be prepared, in accordance with GAAP applied on a consistent basis. All
calculations made for the purposes of determining compliance with this Credit
Agreement shall (except as otherwise expressly provided herein) be made by
application of GAAP applied on a basis consistent with the most recent annual or
quarterly financial statements delivered pursuant to Section 7.1 (or, prior to
the delivery of the first financial statements pursuant to Section 7.1,
consistent with the annual audited financial statements referenced in Section
6.7(i)); provided, however, if (a) the Borrower shall object to determining such
-------- -------
compliance on such basis at the time of delivery of such financial statements
due to any change in GAAP or the rules promulgated with respect thereto or (b)
the Administrative Agent or the Required Banks shall so object in writing within
60 days after delivery of such financial statements, then such calculations
shall be made on a basis consistent with the most recent financial statements
delivered by the Credit Parties to the Banks as to which no such objection shall
have been made.
Notwithstanding the above, the parties hereto acknowledge and agree that
all calculations of the financial covenants set forth in Section 7.10
(including, without limitation, for purposes of determining the "Applicable
Percentage" and for purposes of Section 8.4, Section 8.5, Section 8.7 and
Section 8.12) shall be made on a Pro Forma Basis.
SECTION 2
CREDIT FACILITIES
2.1 Commitments.
-----------
(a) Revolving Commitments. During the Commitment Period, subject to the
---------------------
terms and conditions hereof, each Bank severally agrees to make revolving credit
loans (the "Revolving Loans") in Dollars to the Borrower for the purposes
---------------
hereinafter set forth; provided, however, that (i) with regard to the Banks
-------- -------
collectively, the aggregate principal amount of Revolving Obligations
outstanding shall not at any time exceed the lesser of (A) ONE HUNDRED FIFTY
MILLION DOLLARS ($150,000,000) (as such aggregate maximum amount may be reduced
from time to time as hereinafter provided, the "Aggregate Revolving Committed
-----------------------------
Amount") or (B) the Borrowing Base, and (ii) with regard to each Bank
------
individually, each Bank's Revolving Commitment Percentage of Revolving
Obligations outstanding shall not at any time exceed the lesser of (A) such
Bank's Revolving Committed Amount or (B) such Bank's Revolving Commitment
Percentage of the Borrowing Base. Revolving Loans may consist of Base Rate Loans
or Eurodollar Loans (or a combination thereof), as the Borrower may request, and
may be repaid and reborrowed in accordance with the provisions hereof.
(b) Swingline Commitment. During the Commitment Period, subject to the
--------------------
terms and conditions hereof, the Swingline Bank, in its individual capacity,
agrees to make certain revolving credit loans (the "Swingline Loans") in Dollars
---------------
to the Borrower for the purposes hereinafter set forth; provided, however, (i)
-------- -------
the aggregate principal amount of Swingline Loans outstanding shall not at any
time exceed THIRTY MILLION DOLLARS ($30,000,000) (the "Swingline Committed
-------------------
Amount"), (ii) with regard to the Banks collectively, the aggregate principal
------
amount of Revolving Obligations outstanding shall not at any time exceed the
lesser of (A) the Aggregate Revolving Committed Amount or (B) the Borrowing
Base, and (iii) with regard to each Bank individually, each Bank's Revolving
Commitment Percentage of
28
Revolving Obligations outstanding shall not at any time exceed the lesser of (A)
such Bank's Revolving Committed Amount or (B) such Bank's Revolving Commitment
Percentage of the Borrowing Base. Swingline Loans hereunder may consist of Base
Rate Loans or Fed Funds Swingline Loans (or a combination thereof), as the
Borrower may request, and may be repaid and reborrowed in accordance with the
provisions hereof.
(c) Letter of Credit Commitment. During the Commitment Period, in reliance
---------------------------
on the agreements of the Banks set forth in Section 2.6 and subject to the terms
and conditions hereof and of the LOC Documents, if any, and such other terms and
conditions which the Issuing Bank may reasonably require, the Issuing Bank shall
issue, and the Banks shall participate severally in, such Letters of Credit in
Dollars on a sight basis as the Borrower may request, in form acceptable to the
Issuing Bank, for the purposes hereinafter set forth; provided that (i) the
--------
aggregate amount of LOC Obligations shall not at any time exceed FIFTEEN MILLION
DOLLARS ($15,000,000) (the "LOC Committed Amount"), (ii) with regard to the
--------------------
Banks collectively, the aggregate principal amount of Revolving Obligations
outstanding shall not at any time exceed the lesser of (A) the Aggregate
Revolving Committed Amount or (B) the Borrowing Base, and (iii) with regard to
each Bank individually, each Bank's Revolving Commitment Percentage of Revolving
Obligations outstanding shall not at any time exceed the lesser of (A) such
Bank's Revolving Committed Amount or (B) such Bank's Revolving Commitment
Percentage of the Borrowing Base. Letters of Credit issued hereunder shall have
an expiry date not more than one year from the date of issuance or extension,
and may not extend beyond the date five (5) Business Days prior to the
Termination Date.
2.2 Method of Borrowing.
-------------------
(a) Notice of Request for Extensions of Credit. The Borrower shall request
------------------------------------------
an Extension of Credit as follows:
(i) Revolving Loans. In the case of Revolving Loans, the Borrower
---------------
shall give written notice (or telephone notice promptly confirmed in
writing) substantially in the form of Schedule 2.2(a)(i) (each a "Notice of
------------------ ---------
Revolving Loan Borrowing") to the Administrative Agent not later than 12:00
------------------------
Noon (Charlotte, North Carolina time) on the Business Day of the requested
advance in the case of Base Rate Loans and on the third Business Day prior
to the date of the requested advance in the case of Eurodollar Loans. Each
such Notice of Borrowing shall be irrevocable and shall specify (i) that a
Revolving Loan is requested, (ii) the date of the requested advance (which
shall be a Business Day), (iii) the aggregate principal amount of Revolving
Loans requested, and (iv) whether the Revolving Loans requested shall
consist of Base Rate Loans, Eurodollar Loans or a combination thereof, and
if Eurodollar Loans are requested, the Interest Periods with respect
thereto. The Administrative Agent shall as promptly as practicable give
each Bank notice of each requested Revolving Loan advance, of such Bank's
pro rata share thereof and of the other matters covered in the Notice of
Borrowing. If each Bank makes its pro rata share of the requested Revolving
Loan advance to the Administrative Agent by 2:00 p.m. (Charlotte, North
Carolina time) on the date of the requested Revolving Loan advance, the
Administrative Agent shall initiate the transfer of funds representing the
Revolving Loan advance to the Borrower by 2:30 p.m. (Charlotte, North
Carolina time) on such date.
(ii) Swingline Loans. In the case of Swingline Loans, the Borrower
---------------
shall give written notice (or telephone notice promptly confirmed in
writing) substantially in the form of Schedule 2.2(a)(ii) (each a "Notice
------------------- ------
of Swingline Loan Borrowing") to the Swingline Bank (with a copy to the
---------------------------
Administrative Agent) not later than 12:00 Noon (Charlotte, North Carolina
time)
29
on the Business Day of the requested Swingline Loan advance. Each such
Notice of Borrowing shall be irrevocable and shall specify (A) that a
Swingline Loan advance is requested, (B) the date of the requested
Swingline Loan advance (which shall be a Business Day), (C) the aggregate
principal amount of the Swingline Loan advance requested and (D) whether
the Swingline Loan shall consist of Base Rate Loans, Fed Funds Swingline
Loans or a combination thereof. The Swingline Bank shall initiate the
transfer of funds representing the Swingline Loan advance to the Borrower
by 1:30 p.m. (Charlotte, North Carolina time) on the Business Day specified
by the Borrower in the applicable Notice of Borrowing.
(iii) Letters of Credit. In the case of the issuance or extension of a
-----------------
Letter of Credit, the Borrower shall give written notice (or telephone
notice promptly confirmed in writing) substantially in the form of Schedule
--------
2.2(a)(iii) (each a "Notice of Request of Letter of Credit") to the Issuing
----------- -------------------------------------
Bank (with a copy to the Administrative Agent) not later than 11:00 A.M.
(Charlotte, North Carolina time) on the third Business Day prior to the
date of the requested issuance or extension (or such shorter period as may
be agreed by the Issuing Bank), together with a letter of credit
application in form reasonably acceptable to the Issuing Bank. Each Notice
of Request of Letter of Credit shall be irrevocable and shall specify,
among other things, (A) that a Letter of Credit is requested, (B) the date
of the requested issuance or extension, (C) the type, amount, expiry date
and terms on which the Letter of Credit is to be issued or extended, and
(D) the beneficiary.
(b) Minimum Amounts. Each Eurodollar Loan shall be in a minimum aggregate
---------------
principal amount of $5,000,000 and in integral multiples of $1,000,000 in excess
thereof. Each Base Rate Loan (other than a Base Rate Loan comprising a Swingline
Loan) shall be in a minimum aggregate principal amount of $5,000,000 (or, if
less, the remaining amount of the Aggregate Revolving Committed Amount) and in
integral multiples of $1,000,000 in excess thereof. Each Swingline Loan advance
shall be in a minimum principal amount of $250,000 (or, if less, the remaining
amount of the Swingline Committed Amount) and in integral multiples of $100,000
in excess thereof.
(c) Information Not Provided. If in connection with any request for a
------------------------
Revolving Loan, the Borrower shall fail to specify (i) an applicable Interest
Period in the case of a Eurodollar Loan, the Borrower shall be deemed to have
requested an Interest Period of one month, or (ii) the type of loan requested,
the Borrower shall be deemed to have requested a Base Rate Loan. If in
connection with any request for a Swingline Loan, the Borrower shall fail to
specify the type of Swingline Loan requested, then such notice shall be deemed
to be a request for a Base Rate Loan.
(d) Maximum Number of Eurodollar Loans. The Revolving Loans may be
----------------------------------
comprised of no more than seven (7) Eurodollar Loans outstanding at any time.
For purposes hereof, Eurodollar Loans with separate or different Interest
Periods will be considered as separate Eurodollar Loans even if their Interest
Periods expire on the same date.
2.3 Interest.
--------
Subject to Section 3.1, the Loans shall bear interest at a per annum rate,
payable in arrears on each applicable Interest Payment Date (or at such other
times as may be specified herein), as follows:
(a) Revolving Loans.
---------------
30
(i) Base Rate Loans. During such periods as Revolving Loans shall
---------------
consist of Base Rate Loans, the sum of the Base Rate plus the Applicable
----
Percentage; and
(ii) Eurodollar Loans. During such periods as Revolving Loans shall
----------------
consist of Eurodollar Loans, the sum of the Eurodollar Rate plus the
----
Applicable Percentage.
(b) Swingline Loans.
---------------
(i) Base Rate Loans. During such periods as Swingline Loans shall
---------------
consist of Base Rate Loans, the sum of the Base Rate plus the Applicable
----
Percentage; and
(ii) Fed Funds Swingline Loans. During such period as Swingline Loans
-------------------------
shall consist of Fed Funds Swingline Loans, the sum of the Applicable
Federal Funds Rate plus the Applicable Percentage.
----
2.4 Repayment.
---------
(a) Revolving Loans. The principal amount of all Revolving Loans shall be
---------------
due and payable in full on the Termination Date.
(b) Swingline Loans. The principal amount of each Swingline Loan shall be
---------------
due and payable on the earliest of (A) the date thirty (30) days from the date
of advance thereof, (B) the date of the next Revolving Loan advance or (C) the
Termination Date. If, and to the extent, any Swingline Loan advances shall be
outstanding on the date of any Revolving Loan advance, such Swingline Loans
shall first be repaid from the proceeds of such Revolving Loan advance prior to
distribution of such Revolving Loan advance to the Borrower. If, and to the
extent, Revolving Loans are not requested prior to the Termination Date or the
end of any such 30 day period from the date of any such Swingline Loan advance,
the Borrower shall be deemed to have requested a Revolving Loan comprised solely
of Base Rate Loans in the amount of such Swingline Loan advance then
outstanding, the proceeds of which shall be used to repay the Swingline Bank for
such Swingline Loan.
2.5 Notes.
-----
The Revolving Loans and the Swingline Loans shall be evidenced by the
Revolving Notes.
2.6 Additional Provisions relating to Letters of Credit.
---------------------------------------------------
(a) Reports. The Issuing Bank will provide to the Administrative Agent at
-------
least quarterly, and more frequently upon request, a detailed summary report on
all Letters of Credit and the activity thereon, in form and substance acceptable
to the Administrative Agent. The Issuing Bank will provide copies of the Letters
of Credit to the Administrative Agent and the Banks promptly upon request.
(b) Participation. Upon issuance of a Letter of Credit, each Bank shall be
-------------
deemed to have purchased without recourse a risk participation from the Issuing
Bank in such Letter of Credit and the obligations arising thereunder, in each
case in an amount equal to its pro rata share of the obligations under such
Letter of Credit (based on its Revolving Commitment Percentage) and shall
absolutely, unconditionally and irrevocably assume, as primary obligor and not
as surety, and be obligated to pay to the Issuing Bank therefor and discharge
when due, its pro rata share of the obligations arising under such Letter of
Credit. Without limiting the scope and nature of each Bank's participation in
any Letter of Credit, to the extent that
31
the Issuing Bank has not been reimbursed as required hereunder or under any such
Letter of Credit, each Bank shall pay to the Issuing Bank its pro rata share of
such unreimbursed drawing in same day funds on the day of notification by the
Issuing Bank of an unreimbursed drawing pursuant to the provisions of subsection
(d) hereof. The obligation of each Bank to so reimburse the Issuing Bank shall
be absolute and unconditional and shall not be affected by the occurrence of a
Default, an Event of Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the obligation of the
Borrower to reimburse the Issuing Bank under any Letter of Credit, together with
interest as hereinafter provided.
(c) Reimbursement. In the event of any drawing under any Letter of Credit,
-------------
the Issuing Bank will promptly notify the Borrower. Unless the Borrower shall
immediately notify the Issuing Bank that the Borrower intends to otherwise
reimburse the Issuing Bank for such drawing, the Borrower shall be deemed to
have requested that the Banks make a Revolving Loan in the amount of the drawing
as provided in subsection (d) hereof on the related Letter of Credit, the
proceeds of which will be used to satisfy the related reimbursement obligations.
The Borrower promises to reimburse the Issuing Bank on the day of drawing under
any Letter of Credit (either with the proceeds of a Revolving Loan obtained
hereunder or otherwise) in same day funds. If the Borrower shall fail to
reimburse the Issuing Bank as provided hereinabove, the unreimbursed amount of
such drawing shall bear interest at a per annum rate equal to the Base Rate plus
two percent (2%). The Borrower's reimbursement obligations hereunder shall be
absolute and unconditional under all circumstances irrespective of any rights of
setoff, counterclaim or defense to payment the Borrower may claim or have
against the Issuing Bank, the Administrative Agent, the Banks, the beneficiary
of the Letter of Credit drawn upon or any other Person, including without
limitation any defense based on any failure of the Borrower or any other Credit
Party to receive consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit. The Issuing Bank will promptly notify
the Administrative Agent of the amount of any unreimbursed drawing, the
Administrative Agent will, in turn, promptly notify the Banks, and each Bank
shall promptly pay to the Administrative Agent for the account of the Issuing
Bank in Dollars and in immediately available funds, the amount of such Bank's
Revolving Commitment Percentage of such unreimbursed drawing. Such payment shall
be made on the day such notice is received by such Bank from the Issuing Bank if
such notice is received at or before 2:00 P.M. (Charlotte, North Carolina time)
otherwise such payment shall be made at or before 12:00 Noon (Charlotte, North
Carolina time) on the Business Day next succeeding the day such notice is
received. If such Bank does not pay such amount to the Issuing Bank in full upon
such request, such Bank shall, on demand, pay to the Administrative Agent for
the account of the Issuing Bank interest on the unpaid amount during the period
from the date of such drawing until such Bank pays such amount to the Issuing
Bank in full at a rate per annum equal to, if paid within two (2) Business Days
of the date that such Bank is required to make payments of such amount pursuant
to the preceding sentence, the Federal Funds Rate and thereafter at a rate equal
to the Base Rate. Each Bank's obligation to make such payment to the Issuing
Bank, and the right of the Issuing Bank to receive the same, shall be absolute
and unconditional, shall not be affected by any circumstance whatsoever and
without regard to the termination of this Credit Agreement or the Commitments
hereunder, the existence of a Default or Event of Default or the acceleration of
the obligations of the Borrower hereunder and shall be made without any offset,
abatement, withholding or reduction whatsoever. Simultaneously with the making
of each such payment by a Bank to the Issuing Bank, such Bank shall,
automatically and without any further action on the part of the Issuing Bank or
such Bank, acquire a participation in an amount equal to such payment (excluding
the portion of such payment constituting interest owing to the Issuing Bank) in
the related unreimbursed drawing portion of the LOC Obligation and in the
interest thereon and in the related LOC Documents, and shall have a claim
against the Borrower with respect thereto.
32
(d) Repayment with Revolving Loans. On any day on which the Borrower shall
------------------------------
have requested, or been deemed to have requested, a Revolving Loan advance to
reimburse a drawing under a Letter of Credit, the Administrative Agent shall
give notice to the Banks that a Revolving Loan has been requested or deemed
requested by the Borrower to be made in connection with a drawing under a Letter
of Credit, in which case a Revolving Loan advance comprised of Base Rate Loans
(or Eurodollar Loans to the extent the Borrower has complied with the procedures
of Section 2.2 with respect thereto) shall be immediately made to the Borrower
by all Banks (notwithstanding any termination of the Commitments pursuant to
Section 9.2) pro rata based on the respective Revolving Commitment Percentages
--- ----
of the Banks (determined before giving effect to any termination of the
Commitments pursuant to Section 9.2) and the proceeds thereof shall be paid
directly to the Issuing Bank for application to the respective LOC Obligations.
Each such Bank hereby irrevocably agrees to make its pro rata share of each such
Revolving Loan immediately upon any such request or deemed request in the
amount, in the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with the minimum
---------------
amount for advances of Revolving Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 5.2 are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv) failure of any such
request or deemed request for Revolving Loans to be made by the time otherwise
required hereunder, (v) whether the date of such borrowing is a date on which
Revolving Loans are otherwise permitted to be made hereunder or (vi) any
termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving Loan
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to any Credit Party), then each such Bank hereby
agrees that it shall forthwith purchase (as of the date such borrowing would
otherwise have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) from the Issuing Bank
such participation in the outstanding LOC Obligations as shall be necessary to
cause each such Bank to share in such LOC Obligations ratably (based upon the
respective Commitment Percentages of the Banks (determined before giving effect
to any termination of the Commitments pursuant to Section 9.2)), provided that
--------
in the event such payment is not made on the date due, such Bank shall pay in
addition to the Issuing Bank interest on the amount of its unfunded
Participation Interest at a rate equal to, if paid within two (2) Business Days
of the date due, the Federal Funds Rate, and thereafter at the Base Rate.
(e) Designation of other Credit Parties as Account Parties. Notwithstanding
------------------------------------------------------
anything to the contrary set forth in this Credit Agreement, a Letter of Credit
issued hereunder may contain a statement to the effect that such Letter of
Credit is issued for the account of a Credit Party other than the Borrower,
provided that notwithstanding such statement, the Borrower shall be the actual
account party for all purposes of this Credit Agreement for such Letter of
Credit and such statement shall not affect the Borrower's reimbursement
obligations hereunder with respect to such Letter of Credit.
(f) Renewal, Extension. The renewal or extension of any Letter of Credit
------------------
shall, for purposes hereof, be treated in all respects the same as the issuance
of a new Letter of Credit hereunder.
(g) Uniform Customs and Practices. Unless otherwise expressly agreed by the
-----------------------------
Issuing Bank and the Borrower when a Letter of Credit is issued, (i) the rules
of the "International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each standby Letter of Credit,
and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce (the "ICC")
---
at the time of issuance (including the ICC decision published by the Commission
on Banking Technique and Practice on April 6, 1998 regarding the European single
currency (euro)) shall apply to each trade Letter of Credit.
33
(h) Indemnification; Nature of Issuing Bank's Duties.
------------------------------------------------
(i) In addition to its other obligations under this Section 2.6, the
Borrower hereby agrees to protect, indemnify, pay and save the Issuing Bank
harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) that the Issuing Bank may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any Letter of
Credit or (B) the failure of the Issuing Bank to honor a drawing under a
Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority (all such acts or omissions, herein called
"Government Acts").
---------------
(ii) As between the Borrower and the Issuing Bank, the Borrower shall
assume all risks of the acts, omissions or misuse of any Letter of Credit
by the beneficiary thereof. The Issuing Bank shall not be responsible: (A)
for the form, validity, sufficiency, accuracy, genuineness or legal effect
of any document submitted by any party in connection with the application
for and issuance of any Letter of Credit, even if it should in fact prove
to be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged; (B) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole
or in part, that may prove to be invalid or ineffective for any reason; (C)
for errors, omissions, interruptions or delays in transmission or delivery
of any messages, by mail, cable, telegraph, telex or otherwise, whether or
not they be in cipher; (D) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under a
Letter of Credit or of the proceeds thereof; and (E) for any consequences
arising from causes beyond the control of the Issuing Bank, including,
without limitation, any Government Acts. None of the above shall affect,
impair, or prevent the vesting of the Issuing Bank's rights or powers
hereunder.
(iii) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by
the Issuing Bank, under or in connection with any Letter of Credit or the
related certificates, if taken or omitted in good faith, shall not put such
Issuing Bank under any resulting liability to the Borrower or any other
Credit Party. It is the intention of the parties that this Credit Agreement
shall be construed and applied to protect and indemnify the Issuing Bank
against any and all risks involved in the issuance of the Letters of
Credit, all of which risks are hereby assumed by the Borrower (on behalf of
itself and each of the other Credit Parties), including, without
limitation, any and all Government Acts. The Issuing Bank shall not, in any
way, be liable for any failure by the Issuing Bank or anyone else to pay
any drawing under any Letter of Credit as a result of any Government Acts
or any other cause beyond the control of the Issuing Bank.
(iv) Nothing in this subsection (h) is intended to limit the
reimbursement obligations of the Borrower contained in subsection (d)
above. The obligations of the Borrower under this subsection (h) shall
survive the termination of this Credit Agreement. No act or omissions of
any current or prior beneficiary of a Letter of Credit shall in any way
affect or impair the rights of the Issuing Bank to enforce any right, power
or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (h), the Borrower shall have no obligation to indemnify the
Issuing Bank in respect of any liability incurred by the Issuing Bank (A)
arising solely out of the gross negligence or willful misconduct of the
34
Issuing Bank, as determined by a court of competent jurisdiction, or (B)
caused by the Issuing Bank's failure to pay under any Letter of Credit
after presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit, as determined by a court of competent
jurisdiction, unless such payment is prohibited by any law, regulation,
court order or decree.
(i) Responsibility of Issuing Bank. It is expressly understood and agreed
------------------------------
that the obligations of the Issuing Bank hereunder to the Banks are only those
expressly set forth in this Credit Agreement and that the Issuing Bank shall be
entitled to assume that the conditions precedent set forth in Section 5.2 have
been satisfied unless it shall have acquired actual knowledge that any such
condition precedent has not been satisfied; provided, however, that nothing set
--------- --------
forth in this Section 2.6 shall be deemed to prejudice the right of any Bank to
recover from the Issuing Bank any amounts made available by such Bank to the
Issuing Bank pursuant to this Section 2.6 in the event that it is determined by
a court of competent jurisdiction that the payment with respect to a Letter of
Credit constituted gross negligence or willful misconduct on the part of the
Issuing Bank.
(j) Limitation on Obligation of the Issuing Lender. Notwithstanding
----------------------------------------------
anything contained herein to the contrary, the Issuing Bank shall not be under
any obligation to issue, renew or extend any Letter of Credit if (i) any order,
judgment or decree of any Governmental Authority or arbitrator shall by its
terms purport to enjoin or restrain the Issuing Bank from issuing a Letter of
Credit, or any applicable law, rule or regulation or any request or directive
(whether or not having the force of law) from any Governmental Authority with
jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing
Bank refrain from, the issuance of letters of credit generally or any such
Letter of Credit in particular, or shall impose upon the Issuing Bank with
respect to any such Letter of Credit any restriction, reserve or capital
requirement (for which the Issuing Lender is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the Issuing
Bank any unreimbursed loss, costs or expense that was not applicable on the
Closing Date and that the Issuing Bank should deem material to it in good faith,
or (ii) the issuance, renewal or extension would violate or otherwise contravene
its internal policy as applied on a non-discriminatory basis.
(k) Conflict with LOC Documents. In the event of any conflict between this
---------------------------
Credit Agreement and any LOC Document (including any letter of credit
application), this Credit Agreement shall control.
2.7 Additional Provisions relating to Swingline Loans.
-------------------------------------------------
The Swingline Bank may, at any time, in its sole discretion, by written
notice to the Borrower and the Banks, demand repayment of its Swingline Loans by
way of a Revolving Loan advance, in which case the Borrower shall be deemed to
have requested a Revolving Loan advance comprised solely of Base Rate Loans in
the amount of such Swingline Loans; provided, however, that any such demand
--------- --------
shall be deemed to have been given one Business Day prior to the Termination
Date, on the date of the occurrence of any Event of Default and upon
acceleration of the Loans and other obligations hereunder and the exercise of
remedies in accordance with the provisions of Section 9.2. Each Bank hereby
irrevocably agrees to make its Revolving Commitment Percentage of each such
Revolving Loan in the amount, in the manner and on the date specified in the
preceding sentence notwithstanding (I) the amount of such borrowing may not
---------------
comply with the minimum amount for advances of Revolving Loans otherwise
required hereunder, (II) whether any conditions specified in Section 5.2 are
then satisfied, (III) whether a Default or an Event of Default then exists, (IV)
failure of any such request or deemed request for Revolving Loan to be made by
the time otherwise required hereunder, (V) whether the date of such borrowing is
a date on which Revolving Loans are otherwise permitted to be made hereunder or
(VI) any termination of the Commitments relating thereto
35
immediately prior to or contemporaneously with such borrowing. In the event that
any Revolving Loan cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to any Credit Party), then
each Bank hereby agrees that it shall forthwith purchase (as of the date such
borrowing would otherwise have occurred, but adjusted for any payments received
from the Borrower on or after such date and prior to such purchase) from the
Swingline Bank such participation interests in the outstanding Swingline Loans
as shall be necessary to cause each such Bank to share in such Swingline Loans
ratably based upon its Revolving Commitment Percentage (determined before giving
effect to any termination of the Commitments pursuant to Section 9.2), provided
--------
that (A) all interest payable on the Swingline Loans shall be for the account of
the Swingline Bank until the date as of which the respective Participation
Interest is funded and (B) at the time any purchase of Participation Interests
pursuant to this sentence is actually made, the purchasing Bank shall be
required to pay to the Swingline Bank, to the extent not paid to the Swingline
Bank by the Borrower in accordance with the terms of Section 2.3(b), interest on
the principal amount of Participation Interests purchased for each day from and
including the day upon which such borrowing would otherwise have occurred to but
excluding the date of payment for such Participation Interests, at the rate
equal to the Federal Funds Rate.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITY
--------------------------------------------
3.1 Default Rate.
------------
Upon the occurrence, and during the continuance, of an Event of Default
described in Section 9.1(a), (i) the principal of and, to the extent permitted
by law, interest on the Loans and any other amounts owing hereunder or under the
other Credit Documents shall bear interest, payable on demand, at a per annum
rate 2% greater than the rate which would otherwise be applicable (or if no rate
is applicable, whether in respect of interest, fees or other amounts, then the
Base Rate plus the Applicable Percentage plus 2%) and (ii) the Standby Letter of
---- ----
Credit Fee shall accrue at a per annum rate 2% greater than the rate which would
otherwise be applicable.
3.2 Conversion.
----------
The Borrower shall have the option, on any Business Day, to extend existing
Eurodollar Loans into a subsequent Interest Period or to convert Revolving Loans
of one type into Revolving Loans of another type; provided, however, that (i)
--------- --------
except as provided in Section 3.7, Eurodollar Loans may be converted into Base
Rate Loans only on the last day of an Interest Period applicable thereto, (ii)
Eurodollar Loans may be extended, and Base Rate Loans may be converted into
Eurodollar Loans, only if no Default or Event of Default is in existence on the
date of extension or conversion, (iii) Revolving Loans extended as, or converted
into, Eurodollar Loans shall be in such minimum amounts as provided in Section
2.2(b), and (iv) any request for extension of or conversion to a Eurodollar Loan
which shall fail to specify an Interest Period shall be deemed to be a request
for an Interest Period of one month. Each such extension or conversion shall be
effected by the Borrower by giving written notice (or telephone notice promptly
confirmed in writing) to the Administrative Agent (a "Notice of
---------
Extension/Conversion") prior to 10:00 A.M. (Charlotte, North Carolina time) on
--------------------
the Business Day of, in the case of Base Rate Loans, and on the third Business
Day prior to, in the case of Eurodollar Loans, the date of the proposed
extension or conversion, specifying the date of the proposed extension or
conversion, the Revolving Loans to be so extended or converted, the types of
Revolving Loans into which such Revolving Loans are
36
to be converted and, if appropriate, the applicable Interest Periods with
respect thereto. Each request for extension or conversion shall be deemed to be
a reaffirmation by the Borrower that no Default or Event of Default then exists
and is continuing and that the representations and warranties set forth in
Section 5 are true and correct in all material respects (except to the extent
they relate to an earlier period). In the event the Borrower fails to request
extension of or conversion to any Eurodollar Loan in accordance with this
Section, or any such conversion or extension is not permitted or required by
this Section, then such Revolving Loans shall be automatically converted into
Base Rate Loans at the end of their Interest Period or remain as Base Rate
Loans, as the case may be. The Administrative Agent shall give each Bank notice
as promptly as practicable of any such proposed conversion affecting any
Revolving Loans.
3.3 Termination of Commitments.
--------------------------
The Borrower may from time to time permanently reduce the Aggregate
Revolving Committed Amount in whole or in part (in minimum principal amounts of
$10,000,000 and in integral multiples of $1,000,000 in excess thereof) upon
three (3) Business Days' prior written notice to the Administrative Agent
provided that after giving effect to any voluntary reduction the aggregate
--------
amount of Revolving Obligations shall not exceed the Aggregate Revolving
Committed Amount, as reduced.
3.4 Prepayments.
-----------
(a) Voluntary Prepayments. The Borrower shall have the right to prepay
---------------------
Loans in whole or in part from time to time without premium or penalty;
provided, however, that (A) Eurodollar Loans may only be prepaid (y) on the last
day of the Interest Period applicable thereto or (z) on a day that is not the
last day of an Interest Period applicable thereto if the Borrower pays to the
applicable Banks any amounts due under Section 3.12, and (B) each such partial
prepayment shall be in a minimum principal amount of $5,000,000 and in integral
multiples of $1,000,000 in excess thereof (or the amount then outstanding, if
less). Amounts prepaid on the Loans may be reborrowed in accordance with the
provisions hereof.
(b) Mandatory Prepayments. If at any time (i) the aggregate principal
---------------------
amount of Revolving Obligations shall exceed the lesser of (A) the Aggregate
Revolving Committed Amount or (B) the Borrowing Base, (ii) the aggregate
principal amount of Swingline Loans shall exceed the Swingline Committed Amount,
or (iii) the aggregate principal amount of LOC Obligations shall exceed the LOC
Committed Amount, then in any such instance the Borrower shall immediately make
payment on the Loans and/or to a cash collateral account in respect of LOC
Obligations in an amount sufficient to eliminate the difference.
(c) Application. Unless otherwise specified by the Borrower, prepayments on
-----------
the Revolving Obligations shall be applied first to Fed Funds Rate Swingline
Loans, then to Base Rate Loans and then to Eurodollar Loans in direct order of
Interest Period.
(d) Notice. The Borrower will provide notice to the Administrative Agent of
------
any prepayment by 10:00 a.m. (Charlotte, North Carolina time) on the date of
prepayment.
3.5 Fees.
----
(a) Commitment Fee. In consideration of the Commitments, the Borrower
--------------
agrees to pay to the Administrative Agent for the ratable benefit of the Banks a
commitment fee (the "Commitment Fee") for the period from the Closing Date to
--------------
the Termination Date equal to the Applicable Percentage per annum on the average
daily unused amount of the Aggregate Revolving Committed Amount for the
37
applicable period. The Commitment Fee shall be payable quarterly in arrears on
the last Business Day of each March, June, September and December for the
immediately preceding quarter (or a portion thereof) beginning with the first
such date to occur after the Closing Date and on the Termination Date. For
purposes of computation of the Commitment Fee, (a) LOC Obligations shall be
counted toward and considered usage of the Aggregate Revolving Committed Amount
and (b) Swingline Loans shall not be counted toward nor considered usage of the
Aggregate Revolving Committed Amount.
(b) Utilization Fee. In consideration of the Commitments, during any period
---------------
that the unused amount of the Aggregate Revolving Committed Amount is less than
fifty percent (50%) of the Aggregate Revolving Committed Amount, the Borrower
agrees to pay (in addition to the Commitment Fee) to the Administrative Agent
for the ratable benefit of the Banks a utilization fee (the "Utilization Fee")
---------------
equal to the Applicable Percentage per annum on the average daily outstanding
principal amount of the Revolving Obligations for such period. The Utilization
Fee shall be payable quarterly in arrears on the last Business Day of each
March, June, September and December for the immediately preceding quarter (or a
portion thereof) beginning with the first such date to occur after the Closing
Date and on the Termination Date. For purposes of computation of the Utilization
Fee, (a) LOC Obligations shall be counted toward and considered usage of the
Aggregate Revolving Committed Amount and (b) Swingline Loans shall not be
counted toward nor considered usage of the Aggregate Revolving Committed Amount.
(c) Letter of Credit Fees.
---------------------
(i) Standby Letter of Credit Issuance Fee. In consideration of the
-------------------------------------
issuance of standby Letters of Credit hereunder, the Borrower promises to
pay to the Administrative Agent for the account of each Bank a fee (the
"Standby Letter of Credit Fee") on such Bank's Revolving Commitment
----------------------------
Percentage of the average daily maximum amount available to be drawn under
each such standby Letter of Credit computed at a per annum rate for each
day from the date of issuance to and including the date of expiration equal
to the Applicable Percentage. The Standby Letter of Credit Fee shall be
payable quarterly in arrears on the last Business Day of each March, June,
September and December for the immediately preceding quarter (or a portion
thereof) beginning with the first such date to occur after the Closing Date
and on the Termination Date.
(ii) Issuing Bank Fees. In addition to the Standby Letter of Credit
-----------------
Fee, the Borrower promises to pay to the Administrative Agent for the
account of the Issuing Bank without sharing by the other Banks (i) a letter
of credit fronting fee of one-eighth of one percent (0.125%) on the average
daily maximum amount available to be drawn under each Letter of Credit
computed at a per annum rate for each day from the date of issuance to the
date of expiration and (ii) the customary charges from time to time of the
Issuing Bank with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings under, such
Letters of Credit. The fronting fee shall be payable upon the issuance of
each Letter of Credit and the customary charges shall be payable upon
demand by the Issuing Bank.
(d) Administrative Agent's Fee. The Borrower agrees to pay to the
--------------------------
Administrative Agent, for its own account, the administrative and other fees
referred to in the Administrative Agent's Fee Letter.
3.6 Capital Adequacy.
----------------
If any Bank has determined, after the date hereof, that the adoption or the
becoming effective of, or any change in, or any change by any Governmental
Authority, central bank or comparable agency charged
38
with the interpretation or administration thereof in the interpretation or
administration of, any applicable law, rule or regulation regarding capital
adequacy, or compliance by such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Bank's (including, for purposes hereof, the parent
company of such Bank) capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Bank could have achieved
but for such adoption, effectiveness, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy), then, upon
notice from such Bank to the Borrower, the Borrower shall be obligated to pay to
such Bank such additional amount or amounts as will compensate such Bank for
such reduction. Such notice shall be accompanied by a statement as to the amount
of such compensation and include a reasonably detailed summary of the basis for
such demand with reasonably detailed calculations. Each determination by any
such Bank of amounts owing under this Section shall be reasonable and shall,
absent manifest error, be conclusive and binding on the parties hereto.
3.7 Limitation on Eurodollar Loans.
------------------------------
If on or prior to the first day of any Interest Period for any Eurodollar
Loan:
(a) the Administrative Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant market
arising after the Closing Date, adequate and reasonable means do not exist
for ascertaining the Eurodollar Rate for such Interest Period; or
(b) the Required Banks determine (which determination shall be
conclusive) and notify the Administrative Agent that the Eurodollar Rate
will not adequately and fairly reflect the cost to the Banks of funding
Eurodollar Loans for such Interest Period (other than any such
determination based on Taxes);
then the Administrative Agent shall give the Borrower prompt notice thereof, and
so long as such condition remains in effect, the Banks shall be under no
obligation to make additional Eurodollar Loans, continue Eurodollar Loans, or to
convert Base Rate Loans into Eurodollar Loans.
3.8 Illegality.
----------
Notwithstanding any other provision of this Credit Agreement, in the event
that it becomes unlawful for any Bank (or its Applicable Lending Office) to
make, maintain, or fund Eurodollar Loans hereunder, then such Bank shall
promptly notify the Borrower thereof and such Bank's obligation to make or
continue Eurodollar Loans and to convert Base Rate Loans into Eurodollar Loans
shall be suspended until such time as such Bank may again make, maintain, and
fund Eurodollar Loans (in which case the provisions of Section 3.10 shall be
applicable).
3.9 Requirements of Law.
-------------------
If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, 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 Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency:
39
(i) shall impose, modify, or deem applicable any reserve, special
deposit, assessment, or similar requirement (other than (A) the Eurodollar
Reserve Requirement utilized in the determination of the Adjusted
Eurodollar Rate and (B) Taxes) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities or commitments
of, such Bank (or its Applicable Lending Office), including the Commitment
of such Bank hereunder; or
(ii) shall impose on such Bank (or its Applicable Lending Office) or
the London interbank market any other condition (other than taxes)
affecting this Credit Agreement or its Notes or any of such extensions of
credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making, converting into, continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Bank (or its Applicable Lending Office) under this Credit Agreement or its
Notes with respect to any Eurodollar Loans, then the Borrower shall pay to such
Bank within thirty days of demand therefor such amount or amounts as will
compensate such Bank for such increased cost or reduction. If any Bank requests
compensation by the Borrower under this Section 3.9, the Borrower may, by notice
to such Bank (with a copy to the Administrative Agent), suspend the obligation
of such Bank to make or continue Eurodollar Loans, or to convert Base Rate Loans
into Eurodollar Loans, until the event or condition giving rise to such request
ceases to be in effect (in which case the provisions of Section 3.10 shall be
applicable); provided that such suspension shall not affect the right of such
--------
Bank to receive the compensation so requested. Each Bank shall promptly notify
the Borrower and the Administrative Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Bank to
compensation pursuant to this Section 3.9 and will designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to it. Any Bank claiming compensation under this
Section 3.9 shall furnish to the Borrower and the Administrative Agent a
statement setting forth the additional amount or amounts to be paid to it
hereunder (including a reasonably detailed summary of the basis for such amounts
with reasonably detailed calculations) which shall be conclusive in the absence
of manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
3.10 Treatment of Affected Loans.
---------------------------
If the obligation of any Bank to make any Eurodollar Loan or to continue,
or to convert Base Rate Loans into, Eurodollar Loans shall be suspended pursuant
to Section 3.8 or 3.9 hereof, such Bank's Eurodollar Loans shall be
automatically converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for such Eurodollar Loans (or, in the case of a
Conversion required by Section 3.8 hereof, on such earlier date as such Bank may
specify to the Borrower with a copy to the Administrative Agent) and, unless and
until such Bank gives notice as provided below that the circumstances specified
in Section 3.8 or 3.9 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Bank's Eurodollar Loans have been so
converted, all payments and prepayments of principal that would otherwise
be applied to such Bank's Eurodollar Loans shall be applied instead to its
Base Rate Loans; and
(b) all Loans that would otherwise be made or continued by such Bank
as Eurodollar Loans shall be made or continued instead as Base Rate Loans,
and all Base Rate Loans of such Bank that would otherwise be converted into
Eurodollar Loans shall remain as Base Rate Loans.
40
If such Bank gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 3.8 or 3.9 hereof that gave
rise to the Conversion of such Bank's Eurodollar Loans pursuant to this Section
3.10 no longer exist (which such Bank agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans made by other
Banks are outstanding, such Bank's Base Rate Loans shall be automatically
converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Eurodollar Loans, to the extent necessary so that, after giving
effect thereto, all Loans held by the Banks holding Eurodollar Loans and by such
Bank are held pro rata (as to principal amounts, interest rate basis, and
Interest Periods) in accordance with their respective Commitments.
3.11 Taxes.
-----
(a) Except as otherwise expressly provided herein, any and all payments by
any Credit Party to or for the account of any Bank (whether or not a signatory
hereof) or the Administrative Agent hereunder or under any other Credit Document
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of each Bank and
---------
the Administrative Agent, taxes imposed on, or measured by, its income or gross
receipts, and franchise taxes imposed on it, by the jurisdiction under the laws
of which such Bank (or its Applicable Lending Office) or the Administrative
Agent (as the case may be) is organized or conducts business, or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter referred to
as "Taxes"). If any Credit Party shall be required by law to deduct or withhold
-----
any Taxes from or in respect of any sum payable under this Credit Agreement or
any other Credit Document to any Bank or the Administrative Agent, (i) the sum
payable shall be increased as necessary so that after making all required
deductions and withholdings (including deductions and withholdings applicable to
additional sums payable under this Section 3.11) such Bank or the Administrative
Agent receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Credit Party shall make such deductions and
withholdings, and (iii) such Credit Party shall pay the full amount deducted or
withheld to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under this Credit Agreement or
any other Credit Document or from the execution or delivery of, or otherwise
similarly with respect to, this Credit Agreement or any other Credit Document
(hereinafter referred to as "Other Taxes").
-----------
(c) The Borrower agrees to indemnify each Bank and the Administrative Agent
for the full amount of Taxes and Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 3.11) paid by such Bank or the Administrative Agent (as the
case may be) and any liability (including, penalties, interest, and expenses)
arising therefrom or with respect thereto, except with respect to any Bank or
the Administrative Agent, as the case may be, for such liability arising from
such Bank's or the Administrative Agent's, as the case may be, gross negligence
or willful misconduct.
(d) The Administrative Agent and each Bank shall provide (i) on or prior to
the date of its execution and delivery of this Credit Agreement (or, in the case
of a successor Administrative Agent or assignee of a Bank, on or prior to the
date on which it becomes the Administrative Agent or a Bank), (ii) on or prior
to the date the Administrative Agent changes its administrative office or such
Bank changes its lending office, (iii) on or prior to the date the appropriate
form delivered by the Administrative Agent or such Bank pursuant to this Section
3.11(d) expires or becomes obsolete or invalid and (iv) from time
41
to time thereafter if requested in writing by the Borrower or the Administrative
Agent (but only so long as such Bank remains lawfully able to do so), the
Borrower and the Administrative Agent with (A) a complete and properly executed
Internal Revenue Service Form W-8BEN or W-8ECI, as appropriate, or any successor
form prescribed by the Internal Revenue Service, certifying that the
Administrative Agent or such Bank, as the case may be, is entitled to benefits
under an income tax treaty to which the United States is a party which reduces
to zero the rate of withholding tax on payments of interest or certifying that
the income receivable pursuant to this Credit Agreement or any other Credit
Document is effectively connected with the conduct of a trade or business in the
United States, (B) a complete and properly executed Internal Revenue Service
Form W-9 or any successor form prescribed by the Internal Revenue Service, (C)
any other complete and properly executed form or certificate required by any
taxing authority (including any certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying that the Administrative Agent
or such Bank, as the case may be, is entitled to an exemption from tax on
payments pursuant to this Credit Agreement or any of the other Credit Documents,
(D) a complete and properly executed Internal Revenue Service Form W-8IMY and
any related documents required in conjunction with such W-8IMY, or (E) any other
forms or documents relating to the status of the Administrative Agent or such
Bank, as the case may be, reasonably requested by the Borrower. The
Administrative Agent and each Bank providing one or more forms or certificates
pursuant to this paragraph (d) hereby represent, covenant and warrant the
accuracy of the information provided therein and, if the Administrative Agent or
such Bank provides an Internal Revenue Service Form W-8BEN with Part II
completed in which the Administrative Agent or such Bank claims the benefit of a
tax treaty with the United States providing for a zero rate of withholding, its
entitlements to the benefits of the tax treaty specified therein.
(e) For any period with respect to which the Administrative Agent has
failed to provide the Borrower or a Bank has failed to provide the Borrower and
the Administrative Agent with the appropriate form pursuant to Section 3.11(d)
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
then, notwithstanding any other provision of this Section 3.11, the
Administrative Agent or such Bank, as applicable, shall not be entitled to
additional payment or indemnification under Section 3.11(a), 3.11(b) or 3.11(c)
with respect to Taxes or Other Taxes imposed by the United States; provided,
--------
however, that should the Administrative Agent or a Bank which is otherwise
-------
exempt from or subject to a reduced rate of withholding tax, become subject to
Taxes because of its failure to deliver a form required hereunder, the Borrower
shall take such steps as the Administrative Agent or such Bank, as applicable,
shall reasonably request to assist the Administrative Agent or such Bank, as
applicable, to recover such Taxes.
(f) If any Credit Party is required to pay additional amounts to or for the
account of the Administrative Agent or any Bank pursuant to this Section 3.11,
then the Administrative Agent or such Bank, as the case may be, agrees to file
any certificates or documents reasonably requested in writing by a Credit Party
or to use reasonable efforts to change the jurisdiction of its administrative
office in the case of the Administrative Agent, or its Applicable Lending Office
in the case of a Bank, so as to eliminate or reduce to the greatest extent
possible any such additional payment which may thereafter accrue if such change,
in the good faith judgment of the Administrative Agent or such Bank, as the case
may be, is not otherwise disadvantageous to such Bank.
(g) Within thirty (30) days after the date of any payment of Taxes by any
Credit Party, the applicable Credit Party shall furnish to the Administrative
Agent the original or a certified copy of a receipt evidencing such payment.
42
(h) If the Administrative Agent or any Bank requests indemnification or
compensation for Taxes or Other Taxes pursuant to this Section 3.11 more than 90
days after the earlier of (i) the date on which the Administrative Agent or such
Bank, as the case may be, makes payment of such Taxes or Other Taxes, and (ii)
the date on which the appropriate Governmental Authority makes written demand on
the Administrative Agent or such Bank, as the case may be, for payment of such
Taxes or Other Taxes, then the Borrower shall not be obligated to indemnify or
reimburse the Administrative Agent or such Bank, as the case may be, for such
Taxes or Other Taxes.
(i) If the Administrative Agent or any Bank determines that it has received
a refund, credit or reduction in respect of any Taxes or Other Taxes for which
the Administrative Agent or such Bank, as the case may be, has received payment
from the Borrower or for which any Credit Party has made payments pursuant to
this Section 3.11, then the Administrative Agent or such Bank, as the case may
be, shall, within 45 days after receipt of such refund, credit or reduction, pay
to the Borrower the amount of such refund, credit or reduction (net of any
reasonable out-of-pocket expenses of the Administrative Agent or such Bank, as
the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund, credit or
reduction)), provided, however, that (i) the Administrative Agent or such Bank,
-------- -------
as the case may be, acting in good faith will be the sole judge of the amount of
any such refund, credit or reduction and of the date on which such refund,
credit or reduction is received, (ii) the Administrative Agent or such Bank, as
the case may be, acting in good faith shall have the absolute discretion as to
the order and manner in which it employs or claims tax refund, credits,
reductions and allowances available to it, (iii) the Borrower agrees to repay to
the Administrative Agent or such Bank, as the case may be, upon written request
from the Administrative Agent or such Bank, the amount of such refund, credit or
reduction received by the Borrower, in the event, and to the extent, the
Administrative Agent or such Bank is required to repay such refund, credit or
reduction to any relevant Governmental Authority, and (iv) neither the
Administrative Agent nor any Bank shall be required to make available to any
Credit Party (or any representative of any Credit Party) its tax returns or any
other information relating to its taxes and the computation thereof.
(j) Within thirty (30) days of the written request of the Borrower
therefore, the Bank or the Administrative Agent, as the case may be, shall
execute and deliver to the Borrower such certificates, forms or other documents
which can be furnished consistent with the facts and which are reasonably
necessary to assist the Borrower in applying for refunds of Taxes and Other
Taxes remitted hereunder.
(k) Without prejudice to the survival of any other agreement of the Credit
Parties hereunder, the agreements and obligations of the Credit Parties
contained in this Section 3.11 shall survive the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the termination
of the Commitments and this Agreement.
3.12 Compensation.
------------
Upon demand of any Bank (with a copy to the Administrative Agent) from time
to time, the Borrower shall promptly compensate such Bank for and hold such Bank
harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
43
(b) any failure by the Borrower (for a reason other than the failure of
such Bank to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained (but excluding any loss of
anticipated profits). The Borrower shall also pay any customary administrative
fees charged by such Bank in connection with the foregoing. For purposes of
calculating amounts payable by the Borrower to the Banks under this Section
3.12, each Bank shall be deemed to have funded each Eurodollar Loan made by it
at the Interbank Offered Rate for such Loan by a matching deposit or other
borrowing in the applicable offshore Dollar interbank market for a comparable
amount and for a comparable period, whether or not such Eurodollar Loan was in
fact so funded.
3.13 Pro Rata Treatment.
------------------
Except to the extent otherwise provided herein:
(a) Loans and Letters of Credit. Each Revolving Loan advance, each
---------------------------
payment or prepayment of principal of any Revolving Loan (other than
Swingline Loans) or reimbursement obligations arising from drawings under
Letters of Credit, each payment of interest on the Revolving Loans or
reimbursement obligations arising from drawings under Letters of Credit,
each payment of Commitment Fees, each payment of Utilization Fees, each
payment of the Standby Letter of Credit Fee, each reduction of the
Aggregate Revolving Committed Amount and each conversion or extension of
any Revolving Loan (other than Swingline Loans), shall be allocated pro
rata among the Banks in accordance with the respective Revolving Commitment
Percentages.
(b) Advances.
--------
(i) No Bank shall be responsible for the failure or delay by any
other Bank in its obligation to make its ratable share of a borrowing
hereunder; provided, however, that the failure of any Bank to fulfill
its obligations hereunder shall not relieve any other Bank of its
obligations hereunder.
(ii) Unless the Borrower or any Bank has notified the
Administrative Agent prior to the date any payment is required to be
made by it to the Administrative Agent hereunder, that the Borrower or
such Bank, as the case may be, will not make such payment, the
Administrative Agent may assume that the Borrower or such Bank, as the
case may be, has timely made such payment and may (but shall not be so
required to), in reliance thereon, make available a corresponding
amount to the Person entitled thereto. If and to the extent that such
payment was not in fact made to the Administrative Agent in
immediately available funds, then:
(A) if the Borrower failed to make such payment, each Bank
shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such
Bank in immediately available funds, together with interest
thereon in respect of each day from and including the date such
amount was made available by the Administrative Agent to such
Bank to the date such amount is repaid to the Administrative
Agent in
44
immediately available funds, at the Federal Funds Rate from time
to time in effect; and
(B) if any Bank failed to make such payment, such Bank shall
forthwith on demand pay to the Administrative Agent the amount
thereof in immediately available funds, together with interest
thereon for the period from the date such amount was made
available by the Administrative Agent to the Borrower to the date
such amount is recovered by the Administrative Agent (the
"Compensation Period") at a rate per annum equal to the Federal
-------------------
Funds Rate from time to time in effect. If such Bank does not pay
such amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent may make a demand therefor
upon the Borrower, and the Borrower shall pay such amount to the
Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of
interest applicable to the applicable Borrowing.
Nothing herein shall be deemed to relieve any Bank from its obligation
to fulfill its Commitment or to prejudice any rights that the
Administrative Agent or the Borrower may have against any Bank as a result
of any default by such Bank hereunder. A notice of the Administrative Agent
to any Bank with respect to any amount owing under this subsection (b)
shall be conclusive, absent manifest error.
3.14 Sharing of Payments.
-------------------
The Banks agree among themselves that, in the event that any Bank shall
obtain payment in respect of any Loan, LOC Obligations or any other obligation
owing to such Bank under this Credit Agreement through the exercise of a right
of setoff, banker's lien or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Bank under any
applicable bankruptcy, insolvency or other similar law or otherwise, or by any
other means, in excess of its pro rata share of such payment as provided for in
this Credit Agreement, such Bank shall promptly purchase from the other Banks a
Participation Interest in such Loans, LOC Obligations and other obligations in
such amounts, and make such other adjustments from time to time, as shall be
equitable to the end that all Banks share such payment in accordance with their
respective ratable shares as provided for in this Credit Agreement. The Banks
further agree among themselves that if payment to a Bank obtained by such Bank
through the exercise of a right of setoff, banker's lien, counterclaim or other
event as aforesaid shall be rescinded or must otherwise be restored, each Bank
which shall have shared the benefit of such payment shall, by repurchase of a
Participation Interest theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to each Bank whose payment shall have been rescinded or otherwise restored. The
Borrower agrees that any Bank so purchasing such a Participation Interest may,
to the fullest extent permitted by law, exercise all rights of payment,
including setoff, banker's lien or counterclaim, with respect to such
Participation Interest as fully as if such Bank were a holder of such Loan, LOC
Obligations or other obligation in the amount of such Participation Interest.
Except as otherwise expressly provided in this Credit Agreement, if any Bank or
the Administrative Agent shall fail to remit to the Administrative Agent or any
other Bank an amount payable by such Bank or the Administrative Agent to the
Administrative Agent or such other Bank pursuant to this Credit Agreement on the
date when such amount is due, such payments shall be made together with interest
thereon for each date from the date such amount is due until the date such
amount is paid to the Administrative Agent or such other Bank at a rate per
annum equal to the Federal Funds Rate. If under any applicable bankruptcy,
insolvency or other similar law, any Bank receives a
45
secured claim in lieu of a setoff to which this Section 3.14 applies, such Bank
shall, to the extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the rights of the Banks under this Section
3.14 to share in the benefits of any recovery on such secured claim.
3.15 Payments, Computations, Etc.
---------------------------
(a) Generally. Except as otherwise specifically provided herein, all
---------
payments made by a Credit Party hereunder shall be made to the Administrative
Agent in Dollars in immediately available funds, without condition or deduction
for any counterclaim, defense, recoupment or setoff of any kind, at the
Administrative Agent's office specified in Section 11.1 not later than 2:00 P.M.
(Charlotte, North Carolina time) on the date when due. Payments received after
such time shall be deemed to have been received on the next succeeding Business
Day. The Administrative Agent may (but shall not be obligated to) debit the
amount of any such payment which is not made by such time to any ordinary
deposit account of the Borrower or any other Credit Party maintained with the
Administrative Agent (with notice to the Borrower or such other Credit Party).
The Borrower shall, at the time it makes any payment under this Credit
Agreement, specify to the Administrative Agent the Loans, LOC Obligations, Fees,
interest or other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that it fails so to specify, or if
such application would be inconsistent with the terms hereof, the Administrative
Agent shall distribute such payment to the Banks in such manner as the
Administrative Agent may determine to be appropriate in respect of obligations
owing by the Borrower hereunder, subject to the terms of Section 3.13(a)). The
Administrative Agent will distribute such payments to such Banks, if any such
payment is received prior to 2:00 P.M. (Charlotte, North Carolina time) on a
Business Day in like funds as received prior to the end of such Business Day and
otherwise the Administrative Agent will distribute such payment to such Banks on
the next succeeding Business Day. Whenever any payment hereunder shall be stated
to be due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day (subject to accrual of interest and
Fees for the period of such extension), except that in the case of Eurodollar
Loans, if the extension would cause the payment to be made in the next following
calendar month, then such payment shall instead be made on the next preceding
Business Day. Except as expressly provided otherwise herein, all computations of
interest and fees shall be made on the basis of actual number of days elapsed
over a year of 360 days, except with respect to computation of interest on Base
Rate Loans determined by reference to the Prime Rate, which shall be calculated
based on a year of 365 or 366 days, as appropriate. Interest shall accrue from
and include the date of borrowing, but exclude the date of payment.
(b) Allocation of Payments After Event of Default. Notwithstanding any
---------------------------------------------
other provisions of this Credit Agreement to the contrary, after the occurrence
and during the continuance of an Event of Default, all amounts collected or
received on or in respect of the Obligations (or other amounts owing under the
Credit Documents in connection therewith) shall be paid over or delivered as
follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of
the Administrative Agent in connection with enforcing the rights and
remedies of the Banks under the Credit Documents made with respect
thereto;
SECOND, to payment of any fees owed to the Administrative Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation, reasonable attorneys' fees) of
each of the Banks hereunder in
46
connection with enforcing its rights under the Credit Documents or
otherwise with respect to the Obligations owing to such Bank;
FOURTH, to the payment of all accrued interest and fees on or in
respect of the Obligations;
FIFTH, to the payment of the outstanding principal amount of the
Obligations hereunder (including the payment or cash collateralization
of the outstanding LOC Obligations);
SIXTH, to all other Obligations hereunder and other obligations which
shall have become due and payable under the Credit Documents otherwise
and not repaid pursuant to clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to the Borrower.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; and (ii) except as otherwise provided, the Banks shall
receive amounts ratably in accordance with their respective pro rata share
(based on the proportion that the then outstanding Obligations held by such
Banks bears to the aggregate amount of the Obligations then outstanding) of
amounts available to be applied pursuant to clauses "THIRD", "FOURTH",
"FIFTH" and "SIXTH" above; and (iii) to the extent that any amounts
available for distribution pursuant to clause "FIFTH" above are
attributable to the issued but undrawn amount of outstanding Letters of
Credit, such amounts shall be held by the Administrative Agent in a cash
collateral account and applied (A) first, to reimburse the Issuing Bank for
any drawings under such Letters of Credit and (B) then, following the
expiration of all Letters of Credit, to all other obligations of the types
described in clauses "FOURTH", "FIFTH" and "SIXTH" above in the manner
provided in this Section 3.15(b).
3.16 Evidence of Debt.
----------------
(a) Each Bank shall maintain an account or accounts evidencing each Loan
made by such Bank to the Borrower from time to time, including the amounts of
principal and interest payable and paid to such Bank from time to time under
this Credit Agreement. Each Bank will make reasonable efforts to maintain the
accuracy of its account or accounts and to promptly update its account or
accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant to
Section 11.3(c), and a subaccount for each Bank, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and Interest
Period of each such Loan hereunder, (ii) the amount of any principal or interest
due and payable or to become due and payable to each Bank hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder from or for
the account of any Credit Party and each Bank's share thereof. The
Administrative Agent will make reasonable efforts to maintain the accuracy of
the subaccounts referred to in the preceding sentence and to promptly update
such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts maintained
pursuant to subsection (b) of this Section 3.16 (and, if consistent with the
entries of the Administrative Agent, subsection (a)) shall be prima facie
evidence of the existence and amounts of the obligations of the Credit Parties
therein recorded; provided, however, that the failure of any Bank or the
--------- --------
Administrative Agent to
47
maintain any such account, such Register or such subaccount, as applicable, or
any error therein, shall not in any manner affect the obligation of the Credit
Parties to repay the Obligations and other amounts owing to such Bank.
3.17 Certain Limitations.
-------------------
The provisions of Sections 3.6, 3.9 and 3.11 shall be subject to the
following:
(a) If any Bank requests compensation or indemnification from the Borrower
under Section 3.6, 3.9 or 3.11, then such Bank will agree to use reasonable
efforts to change the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may thereafter accrue if
such change, in the reasonable judgment of such Bank, is not otherwise
disadvantageous to such Bank.
(b) If any Bank requests compensation or indemnification from the Borrower
under Section 3.6, 3.9 or 3.12 more than 90 days after the Bank had knowledge of
the occurrence of the event giving rise to the compensation or indemnification,
the Borrower shall not be obligated to reimburse the Bank for amounts incurred
prior to the date on which the Borrower receives such demand for compensation or
indemnification.
(c) If any Bank requests compensation or indemnification from the Borrower
under Section 3.6, 3.9 or 3.11, or if the obligation of any Bank to make or
maintain Eurodollar Loans has been suspended under Section 3.8, the Borrower
may, at its option, so long as no Event of Default shall have occurred and be
continuing, obtain, at the Borrower's expense, a replacement Bank for the
affected Bank. If the Borrower elects to obtain a replacement Bank for the
affected Bank, the Borrower shall within thirty (30) after the date of such
request notify the Administrative Agent and such affected Bank of its intention
to replace the affected Bank. If the Borrower obtains a replacement Bank within
sixty (60) days following notice of its intention to do so, the affected Bank
must sell and assign its Obligations and Commitments to such replacement Bank
pursuant to Section 11.3 (without giving effect to any requirement therein that
the Administrative Agent consent thereto), for an amount equal to the principal
balance of all Loans held by the affected Bank and all accrued interest and Fees
with respect thereto through the date of such sale, provided that the Borrower
--------
shall have paid to such affected Bank the compensation or indemnification that
it is entitled to receive under Section 3.6, 3.9 or 3.11 through the date of
such sale and assignment. Notwithstanding the foregoing, if the Borrower (a)
fails to give notice to the Administrative Agent and the affected Bank of its
intention to replace the affected Bank within thirty (30) days after the Bank
requests compensation or indemnification, or (b) timely gives notice to the
Administrative Agent and the affected Bank of its intention to replace such
affected Bank but does not so replace such affected Bank within sixty (60) days
following such notice, then in each case the Borrower's rights under this
Section 3.17 to replace such Bank for the particular circumstances shall
terminate.
SECTION 4
GUARANTY
--------
4.1 The Guaranty.
------------
Each of the Guarantors hereby jointly and severally guarantees to each
Bank, each affiliate of a Bank that enters into a Hedging Agreement relating to
the Obligations, and the Administrative Agent, as
48
hereinafter provided, as primary obligor and not as surety, the prompt payment
of the Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors hereby further
agree that if any of the Obligations are not paid in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), the Guarantors will, jointly and severally,
promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) in accordance with the terms of such extension
or renewal.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents or Hedging Agreements, the obligations of each
Guarantor under this Credit Agreement and the other Credit Documents shall be
limited to an aggregate amount equal to the largest amount that would not render
such obligations subject to avoidance under Section 548 of the Bankruptcy Code
or any comparable provisions of any applicable state law.
4.2 Obligations Unconditional.
-------------------------
The obligations of the Guarantors under Section 4.1 are joint and several,
absolute and unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or
security for any of the Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 4.2 that the obligations of the
Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor for amounts paid under this Section 4 until such time as the
Banks (and any affiliates of Banks entering into Hedging Agreements) have been
paid in full in respect of all Obligations, all Commitments under this Credit
Agreement have been terminated and no Person or Governmental Authority shall
have any right to request any return or reimbursement of funds from the Banks in
connection with monies received under the Credit Documents or Hedging Agreements
between any member of the Consolidated Group and any Bank, or any affiliate of a
Bank. Without limiting the generality of the foregoing, it is agreed that, to
the fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor hereunder
which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to any Guarantor,
the time for any performance of or compliance with any of the Obligations
shall be extended, or such performance or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of any of the
Credit Documents, any Hedging Agreement between any member of the
Consolidated Group and any Bank, or any affiliate of a Bank, or any other
agreement or instrument referred to in the Credit Documents or such Hedging
Agreements shall be done or omitted;
(c) the maturity of any of the Obligations shall be accelerated, or
any of the Obligations shall be modified, supplemented or amended in any
respect, or any right under any of the Credit Documents, any Hedging
Agreement between any member of the Consolidated Group
49
and any Bank, or any affiliate of a Bank, or any other agreement or
instrument referred to in the Credit Documents or such Hedging Agreements
shall be waived or any other guarantee of any of the Obligations or any
security therefor shall be released, impaired or exchanged in whole or in
part or otherwise dealt with;
(d) any of the Obligations shall be determined to be void or voidable
(including, without limitation, for the benefit of any creditor of any
Guarantor) or shall be subordinated to the claims of any Person (including,
without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Administrative Agent or any Bank
exhaust any right, power or remedy or proceed against any Person under any of
the Credit Documents, any Hedging Agreement between any member of the
Consolidated Group and any Bank, or any affiliate of a Bank, or any other
agreement or instrument referred to in the Credit Documents or such Hedging
Agreements, or against any other Person under any other guarantee of, or
security for, any of the Obligations.
4.3 Reinstatement.
-------------
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Bank
on demand for all reasonable costs and expenses (including, without limitation,
fees and expenses of counsel) incurred by the Administrative Agent or such Bank
in connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
4.4 Certain Additional Waivers.
--------------------------
Each Guarantor agrees that such Guarantor shall have no right of recourse
to security for the Obligations, except through the exercise of rights of
subrogation pursuant to Section 4.2 and through the exercise of rights of
contribution pursuant to Section 4.6.
4.5 Remedies.
--------
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Banks, on the other hand, the Obligations may be declared to be forthwith due
and payable as provided in Section 9.2 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 9.2)
for purposes of Section 4.1 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Obligations from
becoming automatically due and payable) as against any other Person and that, in
the event of such declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Guarantors
for purposes of Section 4.1.
4.6 Rights of Contribution.
----------------------
50
The Guarantors hereby agree as among themselves that, if any Guarantor
shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other
Guarantor's Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.6 shall be subordinate
and subject in right of payment to the prior payment in full to the
Administrative Agent and the Banks of the Obligations, and none of the
Guarantors shall exercise any right or remedy under this Section 4.6 against any
other Guarantor until payment and satisfaction in full of all of Obligations.
For purposes of this Section 4.6, (a) "Guaranteed Obligations" shall mean any
----------------------
obligations arising under the other provisions of this Section 4; (b) "Excess
------
Payment" shall mean the amount paid by any Guarantor in excess of its Pro Rata
-------
Share of any Guaranteed Obligations; (c) "Pro Rata Share" shall mean, for any
--------------
Guarantor in respect of any payment of Guaranteed Obligations, the ratio
(expressed as a percentage) as of the date of such payment of Guaranteed
Obligations of (i) the amount by which the aggregate present fair salable value
of all of its assets and properties exceeds the amount of all debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder) to (ii) the amount by which the aggregate present fair salable value
of all assets and other properties of all of the Credit Parties exceeds the
amount of all of the debts and liabilities (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of the
Credit Parties hereunder) of the Credit Parties; provided, however, that, for
-------- -------
purposes of calculating the Pro Rata Shares of the Guarantors in respect of any
payment of Guaranteed Obligations, any Guarantor that became a Guarantor
subsequent to the date of any such payment shall be deemed to have been a
Guarantor on the date of such payment and the financial information for such
Guarantor as of the date such Guarantor became a Guarantor shall be utilized for
such Guarantor in connection with such payment; and (d) "Contribution Share"
------------------
shall mean, for any Guarantor in respect of any Excess Payment made by any other
Guarantor, the ratio (expressed as a percentage) as of the date of such Excess
Payment of (i) the amount by which the aggregate present fair salable value of
all of its assets and properties exceeds the amount of all debts and liabilities
of such Guarantor (including contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder) to (ii) the amount by which the aggregate present fair salable value
of all assets and other properties of the Credit Parties other than the maker of
such Excess Payment exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of the Credit Parties) of the Credit Parties other
than the maker of such Excess Payment; provided, however, that, for purposes of
-------- -------
calculating the Contribution Shares of the Guarantors in respect of any Excess
Payment, any Guarantor that became a Guarantor subsequent to the date of any
such Excess Payment shall be deemed to have been a Guarantor on the date of such
Excess Payment and the financial information for such Guarantor as of the date
such Guarantor became a Guarantor shall be utilized for such Guarantor in
connection with such Excess Payment. This Section 4.6 shall not be deemed to
affect any right of subrogation, indemnity, reimbursement or contribution that
any Guarantor may have under applicable law against the Borrower in respect of
any payment of Guaranteed Obligations. Notwithstanding the foregoing, all rights
of contribution against any Guarantor shall terminate from and after such time,
if ever, that such Guarantor shall be relieved of its obligations pursuant to
Section 8.4.
4.7 Guarantee of Payment; Continuing Guarantee.
------------------------------------------
The guarantee in this Section 4 is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Obligations
whenever arising.
51
SECTION 5
CONDITIONS PRECEDENT
--------------------
5.1 Conditions to Closing.
---------------------
The obligation of the Banks to enter into this Credit Agreement and to make
the initial Extensions of Credit shall be subject to satisfaction of the
following conditions (in form and substance acceptable to the Banks):
(a) Executed Credit Documents. Receipt by the Administrative Agent of (i)
-------------------------
multiple counterparts of this Credit Agreement and (ii) a Revolving Note for
each Bank, in each case executed by a duly authorized officer of each party
thereto and in each case conforming to the requirements of this Credit
Agreement.
(b) Legal Opinions. Receipt by the Administrative Agent of multiple
--------------
counterparts of opinions of counsel for the Credit Parties relating to the
Credit Documents and the transactions contemplated therein, substantially in the
form of Schedule 5.1(b).
---------------
(c) Financial Information. Receipt by the Banks of the financial statements
---------------------
described in Section 6.7(i) and such other financial information regarding the
members of the Consolidated Group as may be requested by, and in each case in
form and substance satisfactory to, the Administrative Agent and the Banks.
(d) Corporate Documents. Receipt by the Administrative Agent of the
-------------------
following (or their equivalent) for each of the Credit Parties:
(i) Charter Documents. Copies of the articles or certificates of
-----------------
incorporation or other charter documents of such Credit Party certified to
be true and complete as of a recent date by the appropriate Governmental
Authority of the state or other jurisdiction of its incorporation and
certified by a secretary or assistant secretary of such Credit Party to be
true and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws, operating agreement or equivalent
-------
of such Credit Party certified by a secretary or assistant secretary of
such Credit Party to be true and correct and in force and effect as of the
Closing Date.
(iii) Resolutions. Copies of resolutions of the board of directors (or
-----------
an authorized executive committee, if applicable) of such Credit Party
approving and adopting the Credit Documents to which it is a party, the
transactions contemplated therein and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary of such Credit
Party to be true and correct and in force and effect as of the Closing
Date.
(iv) Good Standing. Certificates of good standing, existence or its
-------------
equivalent certified as of a recent date by the appropriate governmental
authorities of the state of incorporation, the state of the location of the
principal place of business, and each other state in which the failure to
so qualify and be in good standing could reasonably be expected to have a
Material Adverse Effect.
52
(v) Officer's Certificate. An officer's certificate for each of the
---------------------
Credit Parties dated as of the Closing Date substantially in the form of
Schedule 5.1(e) with appropriate insertions and attachments.
---------------
(e) Officer's Certificates. The Administrative Agent shall have received a
----------------------
certificate or certificates executed by a Responsible Officer of the Borrower as
of the Closing Date, in form and substance satisfactory to the Administrative
Agent, stating that, immediately after giving effect to the initial Loans made
and Letters of Credit issued on the Closing Date, (i) no Default or Event of
Default exists and (ii) all representations and warranties contained herein and
in the other Credit Documents are true and correct in all material respects.
(f) Internal Revenue Service Form W-9. The Administrative Agent and each
---------------------------------
Bank shall have provided to the Borrower a complete and properly executed
Internal Revenue Service Form W-9.
(g) Section 5.2 Conditions. Each of the conditions set forth in Section 5.2
----------------------
shall have been satisfied.
(h) Termination of Existing Credit Facilities. Receipt by the
-----------------------------------------
Administrative Agent of evidence of repayment of all obligations owing, and
termination of commitments, under the existing revolving credit facility
extended to the Borrower pursuant to that Credit Agreement dated as of April 24,
2000 among the Borrower, certain Subsidiaries of the Borrower, the banks party
thereto, and Bank of America, N.A., as Administrative Agent.
(i) Fees and Expenses. Payment by the Credit Parties of all fees and
-----------------
expenses due and payable to the Banks and the Administrative Agent, including,
without limitation, payment to the Administrative Agent of the fees set forth in
the Administrative Agent's Fee Letter.
5.2 Conditions to all Extensions of Credit.
--------------------------------------
The obligation of each Bank to make any Extension of Credit (including the
initial Extension of Credit) is subject to the satisfaction of the following
conditions precedent on the date of making such Extension of Credit:
(a) Representations and Warranties. The representations and warranties made
------------------------------
by the Credit Parties herein and in the other Credit Documents and which are
contained in any certificate furnished at any time under or in connection
herewith shall be true and correct in all material respects on and as of the
date of such Extension of Credit as if made on and as of such date (except for
those which expressly relate to an earlier date).
(b) No Default or Event of Default. No Default or Event of Default shall
------------------------------
have occurred and be continuing on such date or after giving effect to the
Extension of Credit to be made on such date.
(c) Section 2 Conditions. Each of the conditions set forth in Section 2
--------------------
shall have been satisfied (and, in addition, in the case of a continuation or
conversion of a Loan, Section 3.2 shall have been satisfied).
Each request for an Extension of Credit (including extensions,
continuations and conversions) and each acceptance by the Borrower of an
Extension of Credit (including extensions, continuations and conversions) shall
be deemed to constitute a representation and warranty by the Borrower as of the
date
53
of such Extension of Credit that the applicable conditions in paragraphs (a),
(b) and (c) of this Section 5.2 have been satisfied.
SECTION 6
REPRESENTATIONS AND WARRANTIES
------------------------------
Each Credit Party hereby represents and warrants to the Administrative
Agent and each Bank that:
6.1 Organization and Good Standing.
------------------------------
Each Credit Party is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of its incorporation, is duly
qualified and in good standing as a foreign corporation authorized to do
business in every jurisdiction where the failure to so qualify could reasonably
be expected to have a Material Adverse Effect, and has the requisite corporate
power and authority to own its Property and to carry on its business as now
conducted and as proposed to be conducted.
6.2 Due Authorization.
-----------------
Each Credit Party (i) has the requisite corporate power and authority to
execute, deliver and perform this Credit Agreement and the other Credit
Documents to which it is a party and to incur the obligations herein and therein
provided for, and (ii) is duly authorized to, and has been authorized by all
necessary corporate action, to execute, deliver and perform this Credit
Agreement and the other Credit Documents to which it is a party.
6.3 No Conflicts.
------------
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by a Credit Party will (i)
violate or conflict with any provision of its articles of incorporation or
bylaws, (ii) violate, contravene or materially conflict with any law, regulation
(including without limitation Regulation U or Regulation X), order, writ,
judgment, injunction, decree or permit applicable to it, (iii) violate,
contravene or materially conflict with contractual provisions of, or cause an
event of default under, any indenture, loan agreement, mortgage, deed of trust,
contract or other agreement or instrument to which it is a party or by which it
may be bound, the violation of which could reasonably be expected to have a
Material Adverse Effect, or (iv) result in or require the creation of any lien,
security interest or other charge or encumbrance (other than those contemplated
in or created in connection with the Credit Documents) upon or with respect its
properties, the creation of which could reasonably be expected to have a
Material Adverse Effect.
6.4 Consents.
--------
No consent, approval, authorization or order of, or filing, registration or
qualification with, any Governmental Authority or any other Person is required
in connection with the execution, delivery or performance of this Credit
Agreement or any of the other Credit Documents by each Credit Party or, if
required, such consent, approval and authorization has been obtained.
54
6.5 Enforceable Obligations.
-----------------------
Each Credit Document has been duly executed and delivered and constitutes
the legal, valid and binding obligation of each Credit Party enforceable against
each Credit Party in accordance with its terms, except as may be limited by
bankruptcy or insolvency laws or similar laws affecting creditors' rights
generally or by general equitable principles.
6.6 Reserved.
--------
6.7 Financial Condition.
-------------------
(a) The consolidated balance sheets of the Borrower and its Subsidiaries as
of December 31, 2001, December 31, 2000 and December 31, 1999 and the related
consolidated statements of income, changes in shareholders' equity and cash
flows for each of the years in the three-year period ended December 31,
2001(copies of which have heretofore been provided to the Administrative Agent
and the Banks) have been prepared in accordance with GAAP consistently applied,
and present fairly in all material respects the financial condition of the
Borrower and its Subsidiaries as of December 31, 2001, December 31, 2000 and
December 31, 1999 and the results of their operations and cash flows for each of
the years in the three-year period ended December 31, 2001.
(b) The consolidated balance sheets of the Borrower and its Subsidiaries
and the related consolidated statements of income, changes in shareholders'
equity and cash flows delivered to the Administrative Agent and the Banks in
accordance with Section 7.1(a) and Section 7.1(b) have been prepared in
accordance with GAAP consistently applied, and present fairly in all material
respects the financial condition of the Borrower and its Subsidiaries as of the
date thereof and the results of their operations and cash flows for the periods
covered thereby.
6.8 No Changes or Restricted Payments.
---------------------------------
Since December 31, 2001:
(i) for the period to the Closing Date, except as previously disclosed
in writing to the Administrative Agent and the Banks, there have been no
material sales, transfers or other dispositions of any material part of the
business or Property of any member of the Consolidated Group, nor have
there been any material purchases or other acquisitions of any business or
Property (including the Capital Stock of any other Person) by any member of
the Consolidated Group, in each case which are not reflected in the annual
audited financial statements referenced in Section 6.7(i); and
(ii) there have been no circumstances, developments or events relating
to or affecting any member of the Consolidated Group which could reasonably
be expected to have a Material Adverse Effect.
6.9 No Default.
----------
No Default or Event of Default presently exists.
55
6.10 Liens.
-----
Except for Permitted Liens, each member of the Consolidated Group has good
and marketable title to, or a valid leasehold interest in, all of its material
real property, and good title to, or a valid leasehold interest in, all of its
other material Property, free and clear of all Liens.
6.11 Indebtedness.
------------
No member of the Consolidated Group has any Indebtedness except for
Indebtedness permitted by Section 8.1.
6.12 Litigation.
----------
Except as disclosed in the Borrower's Form 10K for the fiscal year of the
Borrower ended December 31, 2001, no claim, litigation, investigation or
proceeding of any kind is pending or, to the knowledge of any Responsible
Officer of any Credit Party, threatened, against any member of the Consolidated
Group or any of its Property or revenues which (a) relate to the Credit
Documents or any of the transactions contemplated hereby or thereby or (b) could
reasonably be expected to have a Material Adverse Effect. For purposes hereof,
in the case of proceedings involving only monetary damages, $5,000,000 or more
in any instance shall be considered as having a Material Adverse Effect.
6.13 Material Agreements.
-------------------
No member of the Consolidated Group is in default in any respect (and, to
the knowledge of any Responsible Officer of any Credit Party, no such default is
asserted) under any contract, lease, loan agreement, indenture, mortgage,
security agreement or other agreement or obligation to which any member of the
Consolidated Group is a party or by which any of its Property is bound which
default could reasonably be expected to have a Material Adverse Effect.
6.14 Taxes.
-----
Each member of the Consolidated Group has filed, or caused to be filed, all
material tax returns (federal, state, local and foreign) required to be filed
and paid (a) all amounts of taxes shown thereon to be due (including interest
and penalties) and (b) all other material taxes, fees, assessments and other
governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing (or necessary to preserve any Liens in favor
of the Banks) by it, except for such taxes (i) which are not yet delinquent or
(ii) as are being contested in good faith by proper proceedings for which
adequate reserves are being maintained in accordance with GAAP.
6.15 Compliance with Law.
-------------------
Each member of the Consolidated Group is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not reasonably be expected to have a Material Adverse Effect.
6.16 ERISA.
-----
Except as could not reasonably be expected to have a Material Adverse
Effect:
56
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred, and, to
the knowledge of any Responsible Officer of any Credit Party, no event or
condition has occurred or exists as a result of which any ERISA Event could
reasonably be expected to occur, with respect to any Plan; (ii) no "accumulated
funding deficiency," as such term is defined in Section 302 of ERISA and Section
412 of the Internal Revenue Code, whether or not waived, has occurred with
respect to any Plan; (iii) each Plan has been maintained, operated, and funded
in compliance with its own terms and in material compliance with the provisions
of ERISA, the Internal Revenue Code, and any other applicable federal or state
laws; and (iv) no Lien in favor of the PBGC or a Plan has arisen or is
reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as defined in
Section 4001(a)(16) of ERISA), whether or not vested, under each Single Employer
Plan, as of the last annual valuation date prior to the date on which this
representation is made or deemed made (determined, in each case, in accordance
with Financial Accounting Standards Board Statement 87, utilizing the actuarial
assumptions used in such Plan's most recent actuarial valuation report), did not
exceed as of such valuation date the fair market value of the assets of such
Plan.
(c) Neither the Borrower nor any ERISA Affiliate has incurred any
withdrawal liability under ERISA to any Multiemployer Plan or Multiple Employer
Plan and, to the knowledge of any Responsible Officer of any Credit Party,
neither the Borrower nor any ERISA Affiliate expects to withdraw form a
Multiemployer Plan or Multiple Employer Plan. Neither the Borrower nor any ERISA
Affiliate would become subject to any withdrawal liability under ERISA if any
member of the Consolidated Group or any ERISA Affiliate were to withdraw
completely from all Multiemployer Plans and Multiple Employer Plans as of the
valuation date most closely preceding the date on which this representation is
made or deemed made. Neither the Borrower nor any ERISA Affiliate has received
any notification that any Multiemployer Plan is in reorganization (within the
meaning of Section 4241 of ERISA), is insolvent (within the meaning of Section
4245 of ERISA), or has been terminated (within the meaning of Title IV of
ERISA), and no Multiemployer Plan is, to the knowledge of any Responsible
Officer of any Credit Party, reasonably expected to be in reorganization,
insolvent, or terminated.
(d) No member of the Consolidated Group nor any ERISA Affiliates has any
material liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards Board
Statement 106. Each Plan which is a welfare plan (as defined in Section 3(1) of
ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Internal
Revenue Code apply has been administered in compliance in all material respects
of such sections.
(e) Neither the execution and delivery of this Credit Agreement nor the
consummation of the financing transactions contemplated thereunder will involve
any transaction which is prohibited by Section 406 or 407 of ERISA or Section
404 of ERISA (to the extent that it relates to transactions prohibited by
Sections 406 or 407 of ERISA) or in connection with which a tax could be imposed
pursuant to Section 4975 of the Internal Revenue Code. The representation by the
Credit Parties in the preceding sentence is made in reliance upon and subject to
the accuracy of the Banks' representation in Section 11.15 with respect to their
source of funds.
To the extent any of the foregoing representations include Multiemployer Plans
or Multiple Employer Plans, each such representation shall be based on the
knowledge of any Responsible Officer of any Credit Party.
57
6.17 Subsidiaries.
------------
(a) Set forth on Schedule 6.17 is each Subsidiary of the Borrower,
-------------
including the jurisdiction of organization, ownership and ownership percentages
thereof. The outstanding shares of Capital Stock of each Subsidiary have been
validly issued, fully paid and are non-assessable and owned free of Liens other
than Permitted Liens. The outstanding shares of Capital Stock of each Subsidiary
have been validly issued and fully paid and are non-assessable and owned by the
Person(s) identified on Schedule 6.17, directly or indirectly, free of any Liens
-------------
other than Permitted Liens.
(b) The Non-Guarantor Subsidiaries (not including any Securitization
Subsidiary or any PS Affiliate), as a group, do not exceed the Threshold
Requirement.
6.18 Use of Proceeds; Margin Stock.
-----------------------------
(a) The Loans will be used by the Borrower solely to finance working
capital, capital expenditures and other general corporate purposes (including,
without limitation, Acquisitions permitted hereunder) of the Borrower and its
Subsidiaries.
(b) None of the transactions contemplated by this Credit Agreement
(including, without limitation, the direct or indirect use of the proceeds of
the Loans) will violate or result in a violation of the Securities Act of 1933,
as amended, or the regulations issued pursuant thereto, or the Securities
Exchange Act of 1934, as amended, or regulations issued pursuant thereto, or
Regulation T, U or X. "Margin Stock" within the meanings of Regulation U does
not constitute more than 25% of the value of the consolidated assets of the
Borrower and its Subsidiaries.
6.19 Government Regulation.
---------------------
No Credit Party is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Investment Company Act of 1940
or the Interstate Commerce Act, each as amended. In addition, no Credit Party is
(i) an "investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, or is controlled by such a company,
or (ii) a "holding company," or a "subsidiary company" of a "holding company,"
or an "affiliate" of a "holding company" or of a "subsidiary" or a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
6.20 Environmental Matters.
---------------------
Except as could not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the facilities and properties owned, leased or operated by the
members of the Consolidated Group (the "Subject Properties") and all operations
------------------
at the Subject Properties are in compliance with all applicable Environmental
Laws, and there is no violation of any Environmental Law with respect to the
Subject Properties or the businesses operated by the members of the Consolidated
Group (the "Businesses"), and, to the knowledge of any Responsible Officer of
----------
any Credit Party, there are no conditions relating to the Businesses or Subject
Properties that could give rise to liability under any applicable Environmental
Laws.
(b) None of the Subject Properties contains, or, to the knowledge of any
Responsible Officer of any Credit Party, has previously contained, any Materials
of Environmental Concern at, on or under
58
the Subject Properties in amounts or concentrations that constitute or
constituted a violation of, or could give rise to liability under, Environmental
Laws.
(c) None of the members of the Consolidated Group has received any written
notice of, or inquiry from any Governmental Authority regarding, any violation,
alleged violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the Subject Properties or the Businesses, nor does any Responsible Officer of
any member of the Consolidated Group have knowledge or reason to believe that
any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Subject Properties, or generated, treated, stored or
disposed of at, on or under any of the Subject Properties or any other location,
in each case by or on behalf any members of the Consolidated Group in violation
of, or in a manner that would be reasonably likely to give rise to liability
under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of any Responsible Officer of any Credit Party,
threatened, under any Environmental Law to which any member of the Consolidated
Group is or will be named as a party, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to any member of the Consolidated Group, the Subject Properties or
the Businesses.
(f) There has been no release or, threat of release of Materials of
Environmental Concern at or from the Subject Properties, or arising from or
related to the operations (including, without limitation, disposal) of any
member of the Consolidated Group in connection with the Subject Properties or
otherwise in connection with the Businesses, in violation of or in amounts or in
a manner that could give rise to liability under Environmental Laws.
6.21 Intellectual Property, Franchises, etc.
--------------------------------------
Except as could not reasonably be expected to have a Material Adverse
Effect:
(a) Each member of the Consolidated Group owns, or has the legal right to
use, all trademarks, tradenames, copyrights, patents, technology, know-how and
processes, if any, that are necessary for the operation of its business as
presently conducted and as proposed to be conducted (the "Intellectual
------------
Property"). No claim is pending by any Person challenging or questioning the use
--------
of any Intellectual Property or the validity or effectiveness of any
Intellectual Property, and, to the knowledge of any Responsible Officer of any
Credit Party, no such claim has been asserted. The use of Intellectual Property
by the members of the Consolidated Group does not infringe on the rights of any
Person.
(b) Each member of the Consolidated Group has obtained all material
licenses, permits, franchises or other certifications, consents, approvals and
authorizations, governmental or private, necessary to the ownership of its
Property and to the conduct of its business.
6.22 Investments.
-----------
No member of the Consolidated Group has any Investments except for
Permitted Investments.
59
6.23 No Material Misstatements.
-------------------------
None of the information, reports, financial statements, exhibits or
schedules, taken as a whole, furnished by or on behalf of any member of the
Consolidated Group to the Administrative Agent or any Bank in connection with
the negotiation of the Credit Documents or included therein or delivered
pursuant thereto contained any material misstatement of fact or omitted to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not materially misleading, provided
--------
that to the extent any such information, report, financial statement, exhibit or
schedule was based upon or constitutes a forecast or projection, each Credit
Party represents only that it acted in good faith and utilized reasonable
assumptions and due care in the preparation of such information, report,
financial statement, exhibit or schedule.
6.24 Labor Matters.
-------------
Except as could not reasonably be expected to have a Material Adverse
Effect,
(i) There are no strikes or lockouts against any member of the
Consolidated Group pending or, to the knowledge of any Responsible Officer
of any Credit Party, threatened;
(ii) the hours worked by and payments made to employees of each member
of the Consolidated Group have not been in violation of the Fair Labor
Standards Act or any other applicable federal, state, local or foreign law
dealing with such matters;
(iii) all payments due from each member of the Consolidated Group, or
for which any claim may be made against any member of the Consolidated
Group, 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 respective member of the Consolidated Group; and
(iv) no member of the Consolidated Group is party to a collective
bargaining agreement.
SECTION 7
AFFIRMATIVE COVENANTS
---------------------
Each Credit Party hereby covenants and agrees that so long as any Credit
Document is in effect or any amounts payable under any of the Credit Documents
are outstanding or any Letter of Credit is outstanding, and until the
Commitments shall have terminated:
7.1 Information Covenants.
---------------------
The Credit Parties will furnish, or cause to be furnished, to the
Administrative Agent and each Bank:
(a) Annual Financial Statements. As soon as available and in any event
---------------------------
within 90 days after the close of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of such fiscal year, together with related consolidated statements of
income and of cash flows for such fiscal year, setting forth in comparative
form consolidated figures for the preceding fiscal year, all in reasonable
detail and examined by
60
KPMG LLP, or other independent certified public accountants of recognized
national standing reasonably acceptable to the Required Banks and whose
opinion shall be to the effect that such consolidated financial statements
have been prepared in accordance with GAAP applied on a consistent basis
(except for changes with which such accountants concur).
(b) Quarterly Financial Statements. As soon as available and in any
------------------------------
event within 45 days after the end of each of the first three fiscal
quarters of the Borrower, (i) a consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such fiscal quarter, together with
related consolidated statements of income and of cash flows, (ii) a
condensed consolidating balance sheet of the Guarantors as at the end of
such fiscal quarter, together with related condensed consolidating
statements of operations and of cash flows, and (iii) a condensed
consolidating balance sheet of the Non-Guarantor Subsidiaries as at the end
of such fiscal quarter, together with a related condensed consolidating
statement of operations and of cash flows,
in each case for such fiscal quarter and for the portion of the fiscal year
ending with such period (except that the consolidated and condensed
consolidating statements of cash flows which shall be prepared on a year to
date basis) and in each case setting forth in comparative form consolidated
figures for the corresponding period of the preceding fiscal year (except
that the consolidated and condensed consolidating balance sheets shall be
compared to the prior year end), and all in reasonable form and detail
acceptable to the Required Banks, and accompanied by a certificate of the
chief financial officer, treasurer, controller or chief accounting officer
of the Borrower, to the effect that, to the best of his or her knowledge
and belief, all such financial statements are true and correct in all
material respects and have been prepared in accordance with GAAP applied on
a consistent basis, subject to changes resulting from normal year-end audit
adjustments.
(c) Borrowing Base Certificates. As soon as practicable and in any
---------------------------
event within 15 days after the end of each fiscal quarter of the Borrower,
a statement of the Borrowing Base and its components as of the end of the
immediately preceding fiscal quarter, substantially in the form of Schedule
--------
7.1(c) hereto, certified by the chief financial officer, treasurer,
------
controller or chief accounting officer of the Borrower as being, to the
best of his or her knowledge and belief, true and correct in all material
respects as of such date (each a "Borrowing Base Certificate").
--------------------------
(d) Officer's Certificate. At the time of delivery of the financial
---------------------
statements provided for in Sections 7.1(a) and (b), a certificate of the
chief financial officer, treasurer, controller or chief accounting officer
of the Borrower substantially in the form of Schedule 7.1(d) to the effect
---------------
that no Default or Event of Default exists, or if any Default or Event of
Default does exist specifying the nature and extent thereof and what action
the Borrower proposes to take with respect thereto. In addition, the
Officer's Certificate shall demonstrate compliance with the financial
covenants contained in Section 7.10 by calculation thereof as of the end of
each such fiscal period.
(e) Accountant's Certificate. Within the period for delivery of the
------------------------
annual financial statements provided in Section 7.1(a), a certificate of
the accountants conducting the annual audit stating that they have reviewed
this Credit Agreement and stating further whether, in the course of their
audit, they have become aware of any Default or Event of Default arising as
a result of a violation of the financial covenants contained in Section
7.10 and, if any such Default or Event of Default exists, specifying the
nature and extent thereof.
61
(f) SEC and Other Reports. Promptly upon transmission or receipt
---------------------
thereof, (i) copies of all registration statements (excluding the exhibits
thereto and any registration statements on Form S-8 or its equivalent),
reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all other
periodic reports which any member of the Consolidated Group shall file with
the Securities and Exchange Commission, or any successor agency and (ii)
copies of all reports and written information to and from the United States
Environmental Protection Agency, or any state or local agency responsible
for environmental matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health and
safety matters, or any successor agencies or authorities concerning
environmental, health or safety matters.
(g) Notice of Default or Litigation. Upon any Responsible Officer of
-------------------------------
any Credit Party obtaining knowledge thereof, the Credit Parties will give
written notice to the Administrative Agent (i) immediately, but in any
event within three (3) Business Days, of the occurrence of an event or
condition consisting of a Default or Event of Default, specifying the
nature and existence thereof and what action the Borrower proposes to take
with respect thereto, and (ii) promptly, but in any event within five (5)
Business Days, of the occurrence of any of the following with respect to
any member of the Consolidated Group: (A) the pendency or commencement of
any litigation, arbitration or governmental proceeding against any member
of the Consolidated Group which if adversely determined could reasonably be
expected to have a Material Adverse Effect, (B) the occurrence of an event
or condition which shall constitute a default or event of default under any
Indebtedness of any member of the Consolidated Group which, if accelerated
as a result of such event of default could reasonably be expected to have a
Material Adverse Effect, or (C) any development in its business or affairs
which has resulted in, or which any Credit Party reasonably believes may
result in, a Material Adverse Effect.
(h) ERISA. Upon any Responsible Officer of any Credit Party obtaining
-----
knowledge thereof, the Credit Parties will give written notice to the
Administrative Agent promptly (and in any event within ten (10) Business
Days) of: (i) any event or condition, including, but not limited to, any
Reportable Event, that constitutes, or might reasonably lead to, an ERISA
Event; (ii) with respect to any Multiemployer Plan, the receipt of notice
as prescribed in ERISA or otherwise of any withdrawal liability assessed
against the Credit Parties or any ERISA Affiliates, or of a determination
that any Multiemployer Plan is in reorganization or insolvent (both within
the meaning of Title IV of ERISA) which could result in a liability of at
least $5,000,000; (iii) the failure to make full payment on or before the
due date (including extensions) thereof of all amounts which any member of
the Consolidated Group or any ERISA Affiliate is required to contribute to
each Plan pursuant to its terms and as required to meet the minimum funding
standard set forth in ERISA and the Internal Revenue Code with respect
thereto which could result in a liability of at least $5,000,000; or (iv)
any change in the funding status of any Plan that could reasonably be
expected to have a Material Adverse Effect, together with a description of
any such event or condition or a copy of any such notice and a statement by
an Executive Officer of the Borrower briefly setting forth the details
regarding such event, condition, or notice, and the action, if any, which
has been or is being taken or is proposed to be taken by the Credit Parties
with respect thereto. Promptly upon request, the Credit Parties shall
furnish the Administrative Agent and the Banks with such additional
information concerning any Plan as may be reasonably requested, including,
but not limited to, copies of each annual report/return (Form 5500 series),
as well as all schedules and attachments thereto required to be filed with
the Department of Labor and/or the
62
Internal Revenue Service pursuant to ERISA and the Internal Revenue Code,
respectively, for each "plan year" (within the meaning of Section 3(39) of
ERISA).
(i) Environmental.
-------------
(i) Upon the reasonable written request of the Administrative
Agent following the occurrence of any event or the discovery of any
condition which the Administrative Agent or the Required Banks
reasonably believe has caused (or could reasonably be expected to
cause) the representations and warranties set forth in Section 6.20 to
be untrue in any material respect, the Credit Parties will furnish or
cause to be furnished to the Administrative Agent, at the Credit
Parties' expense, a report of an environmental assessment of
reasonable scope, form and depth (including, where appropriate,
invasive soil or groundwater sampling) by a consultant reasonably
acceptable to the Administrative Agent as to the nature and extent of
the presence of any Materials of Environmental Concern on any Subject
Properties (as defined in Section 6.20) and as to the compliance by
any member of the Consolidated Group with Environmental Laws at such
Subject Properties. If the Credit Parties fail to deliver such an
environmental report within seventy-five (75) days after receipt of
such written request then the Administrative Agent may arrange for
same, and the members of the Consolidated Group hereby grant to the
Administrative Agent and their representatives access to the Subject
Properties to reasonably undertake such an assessment (including,
where appropriate, invasive soil or groundwater sampling). The
reasonable cost of any assessment arranged for by the Administrative
Agent pursuant to this provision will be payable by the Credit Parties
on demand.
(ii) The members of the Consolidated Group will conduct and
complete all investigations, studies, sampling, and testing and all
remedial, removal, and other actions necessary to address all
Materials of Environmental Concern on, from or affecting any of the
Subject Properties to the extent necessary to be in compliance with
all Environmental Laws and with the validly issued orders and
directives of all Governmental Authorities with jurisdiction over such
Subject Properties to the extent any failure could reasonably be
expected to have a Material Adverse Effect.
(j) Other Information. With reasonable promptness upon any such
-----------------
request, such other information regarding the business, properties or
financial condition of the Borrower and its Subsidiaries as the
Administrative Agent or any Bank may reasonably request.
7.2 Preservation of Existence and Franchises.
----------------------------------------
Except as otherwise permitted under Section 8.5 and except as could not
reasonably be expected to have a Material Adverse Effect, each Credit Party
will, and will cause each of its Subsidiaries to, do all things necessary to
preserve and keep in full force and effect its existence, rights, franchises and
authority for the normal conduct of its business.
7.3 Books, Records and Inspections.
-------------------------------
(a) Each Credit Party will, and will cause each of its Subsidiaries to,
keep complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis
63
of GAAP applied on a consistent basis (including the establishment and
maintenance of appropriate reserves).
(b) Each Credit Party will, and will cause each of its Subsidiaries to,
permit, upon reasonable notice and during normal business hours, officers or
designated representatives of the Administrative Agent or any Bank (including,
without limitation, independent accountants, agents, attorneys and appraisers)
to visit and inspect its Property, including its books of account and records,
its accounts receivable and inventory, its facilities and other business assets,
and to discuss the affairs, finances and accounts of such Person with, and be
advised as to the same by, the officers, directors and independent accountants
of such Person.
7.4 Compliance with Law.
--------------------
Each Credit Party will, and will cause each of its Subsidiaries to, comply
with all Requirements of Law to the extent that noncompliance could reasonably
be expected to have a Material Adverse Effect.
7.5 Payment of Taxes and Other Indebtedness.
----------------------------------------
Each Credit Party will, and will cause each of its Subsidiaries to, pay and
discharge (i) all material taxes, assessments and governmental charges or levies
imposed upon it, or upon its income or profits, or upon any of its Property,
before they shall become delinquent, (ii) all lawful claims (including claims
for labor, materials and supplies) which, if unpaid, might give rise to a Lien
or charge upon any of its properties, and (iii) except as prohibited hereunder,
all of its other Indebtedness as it shall become due; provided, however, that no
-------- -------
member of the Consolidated Group shall be required to pay any such tax,
assessment, charge, levy, claim or Indebtedness which is being contested in good
faith by appropriate proceedings for which adequate reserves therefor have been
established in accordance with GAAP, unless the failure to make any such payment
------
(a) shall give rise to an immediate right to foreclosure on a Lien securing such
amounts or (b) otherwise could reasonably be expected to have a Material Adverse
Effect.
7.6 Insurance.
----------
Each Credit Party will, and will cause each of its Subsidiaries to, at all
times maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) with financially sound and reputable insurance companies
in such amounts, covering such risks and liabilities and with such deductibles
or self-insurance retentions as are in accordance with normal industry practice.
Each Credit Party will, and will cause each of its Subsidiaries to, furnish to
the Administrative Agent and the Banks, upon written request, full information
as to insurance carried.
7.7 Maintenance of Property.
------------------------
Each Credit Party will, and will cause each of its Subsidiaries to,
maintain and preserve its Property used or useful in any material portion of its
business in good repair, working order and condition, normal wear and tear,
obsolescence and replacement excepted, and will make, or cause to be made, from
time to time all repairs, renewals, replacements, extensions, additions,
betterments and improvements to its Property as may be needed or proper, to the
extent and in the manner customary for companies in similar businesses.
64
7.8 Performance of Obligations.
--------------------------
Each Credit Party will, and will cause each of its Subsidiaries to, perform
all of its obligations (including, except as may be otherwise prohibited or
contemplated hereunder, payment of Indebtedness in accordance with its terms)
under the terms of all agreements, indentures, mortgages, security agreements or
other debt instruments to which it is a party or by which it is bound if the
failure to do so could reasonably be expected to have a Material Adverse Effect.
7.9 Use of Proceeds.
---------------
The Borrower will use the proceeds of the Extensions of Credit solely for
the purposes set forth in Section 6.18(a).
7.10 Financial Covenants.
-------------------
(a) Consolidated Current Ratio. As of the end of each fiscal quarter of the
--------------------------
Borrower, the Consolidated Current Ratio shall not be less than 1.40 to 1.0.
(b) Consolidated Net Worth. The Borrower will maintain at all times
----------------------
Consolidated Net Worth of not less than the sum of (i) $290,000,000 plus (ii) as
----
of the end of each fiscal quarter beginning with the fiscal quarter ended March
31, 2002, an amount equal to fifty percent (50%) of Consolidated Net Income (to
the extent positive) for such fiscal quarter, such increases to be cumulative,
plus (iii) an amount equal to one hundred percent (100%) of the net proceeds
----
from Equity Transactions occurring after the Closing Date, minus (iv) the amount
-----
of any payments made by the Borrower to repurchase Junior Subordinated
Debentures to the extent such repurchase is permitted under Section 8.7(b)(iv).
(c) Consolidated Total Leverage Ratio. As of the end of each fiscal quarter
---------------------------------
of the Borrower set forth below, the Consolidated Total Leverage Ratio shall not
be greater than 3.25:1.0.
(d) Consolidated Fixed Charge Coverage Ratio. As of the end of each fiscal
----------------------------------------
quarter of the Borrower set forth below, the Consolidated Fixed Charge Coverage
Ratio shall not be less than 1.5:1.0.
7.11 Additional Credit Parties.
-------------------------
(a) Additional Subsidiaries. At any time that the Non-Guarantor
-----------------------
Subsidiaries shall, as a group, (i) account for more than five percent (5%) of
the gross revenues of the members of the Consolidated Group on a consolidated
basis determined in accordance with GAAP, (ii) account for more than five
percent (5%) of net income of the members of the Consolidated Group on a
consolidated basis determined in accordance with GAAP, or (iii) constitute more
than five percent (5%) of Consolidated Total Assets (each a "Threshold
---------
Requirement"), the Borrower will (A) promptly notify the Administrative Agent
-----------
and the Banks thereof, (B) within 45 days thereafter, cause one or more of the
Non-Guarantor Subsidiaries to become a "Guarantor" hereunder by way of execution
of a Joinder Agreement such that immediately thereafter the remaining
Non-Guarantor Subsidiaries shall not, as a group, exceed any Threshold
Requirement and (C) deliver such other documentation as the Administrative Agent
may reasonably request in connection with the foregoing, including, without
limitation, certified resolutions and other organizational and authorizing
documents of such Person, good standing certificates and favorable opinions of
counsel to such Person, all in form, content and scope reasonably satisfactory
to the Administrative Agent. The Borrower may at any time, at its option, cause
a Non-Guarantor Subsidiary to execute and deliver to the Administrative Agent a
Joinder Agreement.
65
(b) Guaranties Relating to Other Debt. If any Non-Guarantor Subsidiary
---------------------------------
shall give a guaranty or become obligated under Support Obligations relating to
any Indebtedness (including, without limitation, the Senior Subordinated Notes),
the Borrower will (A) promptly notify the Administrative Agent and each Bank
thereof and (B) within 45 days thereafter, cause one or more of the
Non-Guarantor Subsidiaries to become a "Guarantor" hereunder by way of execution
of a Joinder Agreement.
SECTION 8
NEGATIVE COVENANTS
------------------
Each Credit Party hereby covenants and agrees that so long as any Credit
Document is in effect or any amounts payable under any of the Credit Documents
are outstanding or any Letter of Credit is outstanding, and until the
Commitments shall have terminated:
8.1 Indebtedness.
------------
The Credit Parties will not permit any member of the Consolidated Group to
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the other
Credit Documents;
(b) Indebtedness existing as of the Closing Date and set forth on
Schedule 8.1(b) (and renewals, refinancings or extensions thereof on terms
---------------
and conditions no less favorable to the members of the Consolidated Group
than such existing Indebtedness (taking into account reasonable market
conditions existing at such time) and in a principal amount not in excess
of that outstanding as of the date of such renewal, refinancing or
extension);
(c) Indebtedness (including purchase money Indebtedness and
obligations under Capital Leases) incurred to finance the purchase or lease
of fixed assets provided that (i) the total of all such Indebtedness shall
not exceed an aggregate principal amount of $10,000,000 at any one time
outstanding; (ii) such Indebtedness when incurred shall not exceed the
purchase price of the asset financed; and (iii) no such Indebtedness shall
be refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing; and
(d) (i) Indebtedness evidenced by the Senior Subordinated Notes (and
renewals, refinancings or extensions thereof on terms and conditions no
less favorable to the members of the Consolidated Group than such existing
Indebtedness (taking into account reasonable market conditions existing at
such time) and in a principal amount not in excess of that outstanding as
of the date of such renewal, refinancing or extension), (ii) Indebtedness
evidenced by the Junior Subordinated Debentures in an aggregate principal
amount up to $136,082,474.23, and (iii) other Subordinated Debt acceptable
to the Required Banks in their sole discretion.
(e) unsecured intercompany Indebtedness owing by a Credit Party to
another Credit Party (subject to the limitations set forth in Section 8.6
in the case of the Credit Party extending the Indebtedness);
66
(f) Indebtedness under Qualified Securitization Transactions in an
aggregate principal amount not to exceed $300,000,000 at any time
outstanding;
(g) obligations owing under interest rate, commodities and foreign
currency exchange protection agreements entered into in the ordinary course
of business to manage existing or anticipated risks and not for speculative
purposes;
(h) other unsecured Funded Debt of the members of the Consolidated
Group which does not exceed $15,000,000 in the aggregate at any time
outstanding; and
(i) except as expressly provided otherwise herein, Support Obligations
of any member of the Consolidated Group with respect to any Indebtedness of
any member of the Consolidated Group permitted under this Section 8.1.
8.2 Liens.
-----
The Credit Parties will not permit any member of the Consolidated Group to
contract, create, incur, assume or permit to exist any Lien with respect to any
of its Property, whether now owned or after acquired, except for Permitted
Liens.
8.3 Nature of Business.
------------------
The Credit Parties will not permit any member of the Consolidated Group to
substantively alter the character of its business in any material respect from
that conducted as of the Closing Date.
8.4 Consolidation, Merger, Sale or Purchase of Assets, etc.
------------------------------------------------------
(a) The Credit Parties will not permit any member of the Consolidated Group
to enter into any transaction of merger or consolidation, except that
(i) a member of the Consolidated Group may be party to a transaction
of merger or consolidation with another member of the Consolidated Group,
provided that (A) if the Borrower is a party to such transaction, the
--------
Borrower shall be the surviving entity, (B) if a Guarantor is a party to
such transaction and the Borrower is not a party to such transaction, a
Guarantor shall be the surviving entity, and (C) in all other cases, if a
Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary
shall be the surviving entity and such Domestic Subsidiary shall take such
actions as may be necessary for compliance with the provisions of Section
7.11;
(ii) a Subsidiary may be a party to a transaction of merger or
consolidation with a Person other than a member of the Consolidated Group,
provided that (A) the surviving entity shall be a Subsidiary and shall take
--------
such actions as may be necessary for compliance with the provisions of
Section 7.11, (B) no Default or Event of Default shall exist immediately
after giving effect thereto, and (C) the transaction shall otherwise be
permitted under Section 8.4(b); and
(iii) a Subsidiary may enter into a transaction of merger or
consolidation in connection with an Asset Disposition permitted under
Section 8.5.
(b) No member of the Consolidated Group shall make any Acquisition, unless:
67
(i) if the Acquisition is of Capital Stock of another Person and after
giving effect to the Acquisition the Person that is the subject of the
Acquisition will not be a Subsidiary, the Acquisition is permitted under
Section 8.6; and
(ii) if (A) the Acquisition is of Capital Stock of another Person and
after giving effect to the Acquisition the Person that is the subject of
the Acquisition will be a Subsidiary or (B) the Acquisition is of all or
any substantial portion of the Property of another Person, the Acquisition
meets the following conditions:
(I) the Person or Property which is the subject of such
Acquisition shall be in the same or similar line of business (or
related thereto) as the members of the Consolidated Group which are
parties thereto;
(II) in the case of a merger or consolidation, and in other cases
where appropriate, the board of directors or other governing body of
the other Person which is the subject of the transaction of merger or
consolidation shall have approved such Acquisition;
(III) no Default or Event of Default shall exist immediately
after giving effect to such Acquisition;
(IV) the Borrower shall have delivered to the Administrative
Agent a Pro Forma Compliance Certificate demonstrating that, upon
giving effect to such Acquisition on a Pro Forma Basis, the Credit
Parties shall be in compliance with all of the covenants set forth in
Section 7.10;
(V) if the Acquisition involves an interest in a partnership and
a requirement that a member of the Consolidated Group be a general
partner, the general partner shall be a newly formed special purpose
Subsidiary;
(VI) the Credit Parties shall, and shall cause the party which is
the subject of the Acquisition to, take such actions as may be
necessary for compliance with the provisions of Sections 7.11;
(VII) in the case of Acquisitions of Foreign Property and
Acquisitions of Capital Stock of a Foreign Person, the Total
Consideration paid in connection with all such Acquisitions shall not
exceed $15,000,000 in the aggregate; and
(VIII) in the case of the Acquisition of Domestic Property and
Acquisitions of Capital Stock of a Domestic Person, unless the
Borrower has delivered to the Administrative Agent a Pro Forma
Compliance Certificate demonstrating that the Consolidated Senior
Leverage Ratio on a Pro Forma Basis after giving effect to any such
Acquisition is less than 2.50:1.0, the Total Consideration paid in
connection with any such Acquisition (or series of related
Acquisitions) shall not exceed $25,000,000.
8.5 Asset Dispositions.
------------------
68
The Credit Parties will not permit any member of the Consolidated Group to
make any Asset Disposition (including, without limitation, any Sale and
Leaseback Transaction), except
(i) the sale, lease or other disposition to a Domestic
Subsidiary; or
(ii) the sale, lease or disposition of machinery and equipment if
the proceeds of such sale, lease or other disposition are reinvested
within ninety (90) days in the same or similar Property; or
(iii) in all other cases, (A) at least seventy-five percent (75%)
of the consideration paid therefor shall consist of cash or Cash
Equivalents, (B) the aggregate net book value of all assets sold,
leased or otherwise disposed of in any fiscal year shall not exceed an
amount equal to five percent (5%) of Consolidated Total Assets as of
the end of the immediately preceding fiscal year, (D) no Default or
Event of Default shall exist immediately after giving effect thereto,
and (E) if the aggregate net book value of the assets sold, leased or
otherwise disposed of in any single disposition (or in any series of
related dispositions) exceeds $5,000,000, the Borrower shall have
demonstrated compliance with the financial covenants hereunder on a
Pro Forma Basis after giving effect to the disposition and shall have
delivered to the Administrative Agent a Pro Forma Compliance
Certificate (including reaffirmation of the representations and
warranties hereunder as of such date before and after giving effect to
such transaction) demonstrating that, upon giving effect to such Asset
Disposition on a Pro Forma Basis, the Credit Parties shall be in
compliance with all of the covenants set forth in Section 7.10;
8.6 Advances, Investments and Loans.
-------------------------------
The Credit Parties will not permit any member of the Consolidated Group to
make any Investment in or to any Person except for Permitted Investments.
8.7 Prepayments and Amendments Relating to Other Debt.
-------------------------------------------------
Without the prior written consent of the Required Banks, the Credit Parties
will not permit any member of the Consolidated Group to:
(a) after the issuance thereof, amend or modify, or permit any
amendment to or modification of, any of the terms of any Funded Debt
(including any Subordinated Debt) in a manner materially adverse to the
interests of the Banks;
(b) make any payment, prepayment, redemption, defeasance or
acquisition for value (including without limitation by way of deposit of
money or securities with a trustee with respect thereto before due for the
purpose of paying when due) of, or refund, refinance or exchange, any
Funded Debt (including any Subordinated Debt) other than, so long as no
Default or Event of Default exists immediately prior thereto or would exist
immediately after giving effect thereto:
(i) regularly scheduled non-default principal payments on the
Senior Subordinated Notes and the Junior Subordinated Debentures;
(ii) regularly scheduled non-default interest payments on the
Senior Subordinated Notes and the Junior Subordinated Debentures;
69
(iii) prepayments in respect of obligations under Capital Leases
not to exceed $10,000,000 in the aggregate in any fiscal year;
(iv) prepayments and redemptions of the Junior Subordinated
Debentures not to exceed $50,000,000 in the aggregate in any fiscal
year, provided that, prior to the making of any such prepayment or
--------
redemption, the Borrower shall have delivered to the Administrative
Agent a Pro Forma Compliance Certificate (including reaffirmation of
the representations and warranties hereunder as of such date before
and after giving effect to such transaction) demonstrating that, upon
giving effect to such prepayment or redemption on a Pro Forma Basis,
(A) the Credit Parties shall be in compliance with all of the
covenants set forth in Section 7.10 and (B) the Consolidated Senior
Leverage Ratio is less than 2.50:1.0;
(v) prepayments and redemptions of the Senior Subordinated Notes
not to exceed $50,000,000 in the aggregate provided that, prior to the
--------
making of any such prepayment or redemption, the Borrower shall have
delivered to the Administrative Agent a Pro Forma Compliance
Certificate (including reaffirmation of the representations and
warranties hereunder as of such date before and after giving effect to
such transaction) demonstrating that, upon giving effect to such
prepayment or redemption on a Pro Forma Basis, (A) the Credit Parties
shall be in compliance with all of the covenants set forth in Section
7.10 and (B) the Consolidated Senior Leverage Ratio is less than
2.50:1.0;
(vi) prepayments and redemptions of the Senior Subordinated Notes
and Junior Subordinated Debentures in addition to the amount permitted
under clauses (iv) and (v) above provided that, prior to the making of
--------
any such prepayment or redemption, the Borrower shall have delivered
to the Administrative Agent a Pro Forma Compliance Certificate
(including reaffirmation of the representations and warranties
hereunder as of such date before and after giving effect to such
transaction) demonstrating that, upon giving effect to such prepayment
or redemption on a Pro Forma Basis, (A) the Credit Parties shall be in
compliance with all of the covenants set forth in Section 7.10 and (B)
the Consolidated Senior Leverage Ratio is less than 1.75:1.0; and
(vi) refinancing of the Senior Subordinated Notes to the extent
permitted by Section 8.1(d)(i).
(c) designate any other indebtedness as "Designated Senior and
Subordinated Debt" within the meaning provided in the indenture or other
governing instruments relating to the Junior Subordinated Debentures.
8.8 Transactions with Affiliates.
----------------------------
The Credit Parties will not permit any member of the Consolidated Group to
enter into any transaction or series of transactions, whether or not in the
ordinary course of business, with any officer, director, shareholder, Subsidiary
or Affiliate of such Person other than (a) transactions among the Credit
Parties, (b) normal compensation and reimbursement of expenses of officers and
directors, (c) transactions relating to a Qualified Securitization Transaction,
(d) transactions with ▇▇▇▇▇ & Minor Trust I in connection with the Preferred
Securities, and (e) except as otherwise specifically limited in this Credit
Agreement, other transactions which are entered into in the ordinary course of
such Person's business on
70
terms and conditions substantially as favorable to such Person as would be
obtainable by it in a comparable arms-length transaction with a Person other
than an officer, director, shareholder, Subsidiary or Affiliate.
8.9 Ownership of Subsidiaries.
-------------------------
Except as permitted by Section 8.5, the Credit Parties will not permit any
member of the Consolidated Group to sell, transfer or otherwise dispose of, any
shares of Capital Stock of any Subsidiaries or permit any Subsidiaries to issue,
sell or otherwise dispose of, any shares of Capital Stock of any Subsidiary to
any Person other than the Borrower or a Subsidiary. The Borrower will not
create, form or acquire, nor will it permit any of its Subsidiaries to create,
form or acquire, any Subsidiary, unless such Subsidiary is either (i) promptly
joined as an Additional Credit Party pursuant to the requirements of Section
7.11, if such joinder is required thereby, (ii) a Securitization Subsidiary or
(iii) a PS Affiliate.
8.10 Fiscal Year.
-----------
The Credit Parties will not permit any member of the Consolidated Group to
change its fiscal year without the prior written consent of the Required Banks
or to amend, modify or change its articles of incorporation (or corporate
charter or other similar organizational document) or bylaws (or other similar
document) in a manner adverse to the interests of the Banks.
8.11 Subsidiary Dividends.
--------------------
The Credit Parties will not permit any member of the Consolidated Group to
enter into, assume or otherwise become subject to, or permit any of their
respective Subsidiaries (other than a Securitization Subsidiary pursuant to a
Qualified Securitization Transaction permitted hereunder or any PS Affiliate) to
enter into, assume or otherwise become subject to, any agreement prohibiting or
otherwise restricting the payment of dividends by any of the Borrower's
Subsidiaries (other than a Securitization Subsidiary pursuant to a Qualified
Securitization Transaction permitted hereunder), except as may be provided
herein or in the indenture relating to the Senior Subordinated Notes or in the
indenture relating to the Junior Subordinated Debentures.
8.12 Restricted Payments.
-------------------
The Credit Parties will not make, or permit any member of the Consolidated
Group to make, any Restricted Payment, unless (a) no Default or Event of Default
shall exist immediately prior thereto and immediately after giving effect
thereto and (b) in the case of any Restricted Payment other than ordinary cash
dividends, the Borrower shall have delivered to the Administrative Agent a Pro
Forma Compliance Certificate (including reaffirmation of the representations and
warranties hereunder as of such date before and after giving effect to such
transaction) demonstrating that, upon giving effect to such Restricted Payment
on a Pro Forma Basis, the Credit Parties shall be in compliance with all of the
covenants set forth in Section 7.10; provided, however, the aggregate amount
-------- -------
expended to redeem, repurchase, retire or otherwise acquire the Borrower's
common stock shall not exceed $35,000,000 during the term of this Credit
Agreement.
71
SECTION 9
EVENTS OF DEFAULT
-----------------
9.1 Events of Default.
-----------------
An Event of Default shall exist upon the occurrence of any of the following
specified events (each an "Event of Default"):
----------------
(a) Payment. Any Credit Party shall
-------
(i) default in the payment when due of any principal of any of
the Loans or of any reimbursement obligations arising from drawings
under Letters of Credit, or
(ii) default, and such default shall continue for three (3) or
more Business Days, in the payment when due of any interest on the
Loans or on any reimbursement obligations arising from drawings under
Letters of Credit, or of any Fees or other amounts owing hereunder,
under any of the other Credit Documents or in connection herewith or
therewith; or
(b) Representations. Any representation, warranty or statement made or
---------------
deemed to be made by any Credit Party herein, in any of the other Credit
Documents, or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material
respect on the date as of which it was made or deemed to have been made; or
(c) Covenants. Any Credit Party shall
---------
(i) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.1(g), 7.9, 7.11 or 8.1
through 8.12, inclusive, or
(ii) default in the due performance or observance of any of the
financial covenants contained in Section 7.10 and the continuance
thereof for a period of 15 days after knowledge thereof by a
Responsible Officer of any Credit Party (but in no event later than 15
days after the date by which the Borrower is required to deliver
annual or quarterly financial statements in accordance with Sections
7.1(a) and (b), as appropriate) without the Borrower having obtained
an effective waiver hereunder; or
(iii) default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) or (ii) of this Section 9.1) contained
in this Credit Agreement or any other Credit Document and such default
shall continue unremedied for a period of at least 30 days after the
earlier of a Responsible Officer becoming aware of such default or
notice thereof by the Administrative Agent; provided, however, that if
-------- -------
such default cannot be cured within such period, the Borrower or other
Credit Party may have such additional period of time not to exceed 30
days after the expiration of such original 30 day period, and such
default shall not constitute an Event of Default hereunder, so long as
the applicable Credit Party shall commence within such original 30 day
period, and diligently pursue, appropriate curative efforts; or
72
(d) Other Credit Documents. Any Credit Document shall fail to be in
----------------------
full force and effect or to give the Administrative Agent and/or the Banks
the Liens, rights, powers and privileges purported to be created thereby,
or any Credit Party shall so state in writing; or
(e) Guaranties. The guaranty given by any Guarantor (including any
----------
Additional Credit Party) hereunder or any material provision thereof shall
cease to be in full force and effect, or any Guarantor (including any
Additional Credit Party) or any Person acting by or on behalf of such
Guarantor shall deny or disaffirm such Guarantor's obligations under such
guaranty, or any Guarantor (including any Additional Credit Party) shall
default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any guaranty;
or
(f) Bankruptcy Event. Any Bankruptcy Event shall occur with respect to
----------------
the Borrower or any Guarantor; or
(g) Defaults under Other Agreements. With respect to any Indebtedness
-------------------------------
(other than Indebtedness outstanding under this Credit Agreement) in excess
of $10,000,000 in the aggregate for the members of the Consolidated Group,
taken as a whole, (i) any member of the Consolidated Group shall (A)
default in any payment (beyond the applicable grace period with respect
thereto, if any) with respect to any such Indebtedness, or (B) default in
the observance or performance relating to such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or
any other event or condition shall occur or condition exist, the effect of
which default or other event or condition is to cause, or permit the holder
or holders of such Indebtedness (or trustee or agent on behalf of such
holders) to cause, any such Indebtedness to become due prior to its stated
maturity; or (ii) any such Indebtedness shall be declared due and payable,
or required to be prepaid other than by a regularly scheduled required
prepayment, prior to the stated maturity thereof; or
(h) Judgments. One or more judgments or decrees shall be entered
---------
against the any member of the Consolidated Group involving a liability of
$500,000 or more in the aggregate (to the extent not paid or fully covered
by insurance provided by a carrier who has acknowledged coverage) and any
such judgments or decrees shall not have been vacated, discharged or stayed
or bonded pending appeal within 30 days from the entry thereof; or
(i) ERISA. Any of the following events or conditions, if such event or
-----
condition is reasonably likely to result in the imposition of taxes,
penalties, or other liabilities upon the Borrower or any ERISA Affiliate in
an aggregate amount in excess of $5,000,000: (i) any "accumulated funding
deficiency," as such term is defined in Section 302 of ERISA and Section
412 of the Internal Revenue Code, whether or not waived, shall exist with
respect to any Single Employer Plan, or any lien shall arise on the assets
of the Borrower or any ERISA Affiliate in favor of the PBGC or a Plan; (ii)
an ERISA Event shall occur with respect to a Single Employer Plan, which
results in the termination of such Plan for purposes of Title IV of ERISA;
(iii) an ERISA Event shall occur with respect to a Multiemployer Plan or
Multiple Employer Plan, which results in (A) the termination of such Plan
for purposes of Title IV of ERISA, or (B) the Borrower or any ERISA
Affiliate incurring any liability in connection with a withdrawal from,
reorganization of (within the meaning of Section 4241 of ERISA), or
insolvency (within the meaning of Section 4245 of ERISA) of such Plan; or
(iv) any prohibited transaction (within the meaning of Section 406 of ERISA
or Section 4975 of the Internal Revenue Code) or breach of fiduciary
responsibility shall occur which subjects the Borrower or any ERISA
Affiliate to any liability under Sections 406, 409,
73
502(i), or 502(l) of ERISA or Section 4975 of the Internal Revenue Code, or
under any agreement or other instrument pursuant to which the Borrower or
any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability; or
(j) Ownership. There shall occur a Change of Control; or
---------
(k) Default under Senior Subordinated Notes. The occurrence of an
---------------------------------------
event of default under the Senior Subordinated Notes; or
(l) Default under Securitization Agreement. The occurrence of an event
--------------------------------------
of default under any of the Securitization Agreements.
9.2 Acceleration; Remedies.
----------------------
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the requisite Banks
(pursuant to the voting procedures in Section 11.6) or cured to the satisfaction
of the requisite Banks (pursuant to the voting procedures in Section 11.6), the
Administrative Agent may, and upon the request and direction of the Required
Banks shall, by written notice to the Borrower take any of the following actions
without prejudice to the rights of the Administrative Agent or any Bank to
enforce its claims against the Credit Parties, except as otherwise specifically
provided for herein:
(i) Termination of Commitments. Declare the Commitments terminated
--------------------------
whereupon the Commitments shall be immediately terminated.
(ii) Acceleration. Declare the unpaid principal of and any accrued
------------
interest in respect of all Loans, any reimbursement obligations arising
from drawings under Letters of Credit and any and all other indebtedness or
obligations of any and every kind owing by the Credit Parties to the
Administrative Agent and/or any of the Banks hereunder to be due whereupon
the same shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Credit Parties.
(iii) Cash Collateral. Direct the Credit Parties to pay (and the
---------------
Credit Parties agree that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(f), they will
immediately pay) to the Administrative Agent additional cash, to be held by
the Administrative Agent, for the benefit of the Banks, in a cash
collateral account as additional security for the LOC Obligations in
respect of subsequent drawings under all then outstanding Letters of Credit
in an amount equal to the maximum aggregate amount which may be drawn under
all Letters of Credits then outstanding.
(iv) Enforcement of Rights. Enforce any and all rights and interests
---------------------
created and existing under the Credit Documents including, without
limitation, all rights and remedies against a Guarantor and all rights of
set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(f) shall occur, then the Commitments shall automatically terminate and all
Loans, all accrued interest in respect thereof, all accrued and unpaid Fees and
other indebtedness or obligations owing to the Banks hereunder shall immediately
become due and payable without the giving of any notice or other action by the
Administrative Agent or the Banks.
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SECTION 10
AGENCY PROVISIONS
-----------------
10.1 Appointment and Authorization of Agent.
--------------------------------------
(a) Each Bank hereby irrevocably (subject to Section 10.9) appoints,
designates and authorizes the Administrative Agent to take such action on its
behalf under the provisions of this Credit Agreement and each other Credit
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Credit Agreement or any other Credit
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Credit Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Bank or participant, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Credit Agreement or
any other Credit Document or otherwise exist against the Administrative Agent.
Without limiting the generality of the foregoing sentence, the use of the term
"agent" herein and in the other Credit Documents with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(b) The Issuing Bank shall act on behalf of the Banks with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time (and except for so long) as the Administrative Agent may agree at the
request of the Required Banks to act for the Issuing Bank with respect thereto;
provided, however, that the Issuing Bank shall have all of the benefits and
-------- -------
immunities (i) provided to the Administrative Agent in this Section 10 with
respect to any acts taken or omissions suffered by the Issuing Bank in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent" as used in this
Section 10 included the Issuing Bank with respect to such acts or omissions, and
(ii) as additionally provided herein with respect to the Issuing Bank.
10.2 Delegation of Duties.
--------------------
The Administrative Agent may execute any of its duties under this Credit
Agreement or any other Credit Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
10.3 Liability of Agent.
------------------
No Agent-Related Person shall (a) be liable for any action taken or omitted
to be taken by any of them under or in connection with this Credit Agreement or
any other Credit Document or the transactions contemplated hereby (except for
its own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Bank or
participant for any recital, statement, representation or warranty made by any
Credit Party or any officer thereof, contained
75
herein or in any other Credit Document, 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 Credit Agreement or any
other Credit Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Credit Agreement or any other Credit
Document, or for any failure of any Credit Party or any other party to any
Credit Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Bank or participant to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Credit Agreement or any other
Credit Document, or to inspect the properties, books or records of any Credit
Party or any Affiliate thereof.
10.4 Reliance by Agent.
-----------------
(a) The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement 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 counsel to any Credit Party with respect to
organization and authority), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent shall be fully justified
in failing or refusing to take any action under any Credit Document unless it
shall first receive such advice or concurrence of the Required Banks as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Credit Agreement or any other Credit Document
in accordance with a request or consent of the Required Banks or all the Banks,
if required hereunder, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Banks and participants. Where
this Credit Agreement expressly permits or prohibits an action unless the
Required Banks otherwise determine, the Administrative Agent shall, and in all
other instances, the Administrative Agent may, but shall not be required to,
initiate any solicitation for the consent or a vote of the Banks.
(b) For purposes of determining compliance with the conditions specified in
Section 5.1, each Bank that has signed this Credit Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Administrative Agent to such Bank for
consent, approval, acceptance or satisfaction, and required thereunder to be
consented to or approved by or acceptable or satisfactory to a Bank.
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10.5 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, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Administrative Agent for the account of the Banks, unless the
Administrative Agent shall have received written notice from a Bank or the
Borrower referring to this Credit Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." The
Administrative Agent will notify the Banks of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be directed by the Required Banks in accordance with
Section 9; provided, however, that unless and until the Administrative Agent has
-------- -------
received any such direction, 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 or in the best
interest of the Banks.
10.6 Credit Decision; Disclosure of Information by Agent.
---------------------------------------------------
Each Bank acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Credit Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Bank as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Bank represents to the
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Credit Parties and their respective Subsidiaries, and
all applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Credit
Agreement and to extend credit to the Borrower and the other Credit Parties
hereunder. Each Bank also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Credit Agreement and the other Credit Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Credit Parties. Except for
notices, reports and other documents expressly required to be furnished to the
Banks by the Administrative Agent herein, the Administrative Agent shall not
have any duty or responsibility to provide any Bank with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Credit Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.
10.7 Indemnification of Agent.
------------------------
Whether or not the transactions contemplated hereby are consummated, the
Banks shall indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by or on behalf of any Credit Party and without limiting the
obligation of any Credit Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Bank shall be liable for the payment
-------- -------
to any Agent-Related Person of any portion of such Indemnified Liabilities
resulting from such Person's gross negligence or willful misconduct; provided,
--------
however, that no action taken in accordance with the directions of the Required
-------
Banks shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section. Without limitation of the foregoing, each Bank shall
reimburse the Administrative Agent upon demand for its ratable share of any
77
costs or out-of-pocket expenses (including reasonable fees and costs of counsel)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Credit Agreement,
any other Credit Document, or any document contemplated by or referred to
herein, to the extent that the Administrative Agent is not reimbursed for such
expenses by or on behalf of the Borrower. The undertaking in this Section shall
survive termination of the Commitments, the payment of all Obligations hereunder
and the resignation or replacement of the Administrative Agent.
10.8 Agent in its Individual Capacity.
--------------------------------
Bank of America and its Affiliates may make loans to, issue letters of credit
for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Credit Parties and their respective
Affiliates as though Bank of America were not the Administrative Agent or the
Issuing Bank hereunder and without notice to or consent of the Banks. The Banks
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Credit Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Credit Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Credit Agreement as any other Bank and may exercise such rights and powers as
though it were not the Administrative Agent or the Issuing Bank, and the terms
"Bank" and "Banks" include Bank of America in its individual capacity.
10.9 Successor Agent.
---------------
The Administrative Agent may resign as Agent upon 30 days' notice to the
Banks. If the Administrative Agent resigns under this Credit Agreement, the
Required Banks shall appoint from among the Banks a successor Agent for the
Banks which successor Agent shall be consented to by the Borrower at all times
other than during the existence of an Event of Default (which consent of the
Borrower shall not be unreasonably withheld or delayed). If no successor Agent
is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Banks and the Borrower, a successor Agent from among the Banks. Upon
the acceptance of its appointment as successor Agent hereunder, such successor
Agent shall succeed to all the rights, powers and duties of the retiring Agent
and the term "Agent" shall mean such successor Agent and the retiring Agent's
appointment, powers and duties as Agent shall be terminated. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Section 10 and
Sections 11.4 and 11.9 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Credit Agreement. If no
successor Agent has accepted appointment as Agent by the date which is 30 days
following a retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and the Banks shall
perform all of the duties of the Administrative Agent hereunder until such time,
if any, as the Required Banks appoint a successor agent as provided for above.
10.10 Other Agents; Lead Managers.
---------------------------
None of the Banks identified on the facing page or signature pages of this
Credit Agreement as a "syndication agent," "documentation agent," "co-agent" or
"lead manager" shall have any right, power, obligation, liability,
responsibility or duty under this Credit Agreement other than those applicable
to all Banks as such. Without limiting the foregoing, none of the Banks so
identified shall have or be deemed
78
to have any fiduciary relationship with any Bank. Each Bank acknowledges that it
has not relied, and will not rely, on any of the Banks so identified in deciding
to enter into this Credit Agreement or in taking or not taking action hereunder.
SECTION 11
MISCELLANEOUS
-------------
11.1 Notices.
-------
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted via telecopy (or other facsimile device) to the
number set forth on Schedule 11.1, (iii) the day following the day on which the
-------------
same has been delivered prepaid to a reputable national overnight air courier
service, or (iv) the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address set forth on Schedule 11.1, or at such other
address as such party may specify by written notice to the other parties hereto.
11.2 Right of Set-Off; Adjustments.
-----------------------------
Upon the occurrence and during the continuance of any Event of Default,
each Bank (and each of its affiliates) is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Bank (or any of
its affiliates) to or for the credit or the account of any Credit Party against
any and all of the obligations of such Person now or hereafter existing under
this Credit Agreement, under the Notes, under any other Credit Document or
otherwise, irrespective of whether such Bank shall have made any demand
hereunder or thereunder and although such obligations may be unmatured. Each
Bank agrees promptly to notify any affected Credit Party after any such set-off
and application made by such Bank; provided, however, that the failure to give
-------- -------
such notice shall not affect the validity of such set-off and application. The
rights of each Bank under this Section 11.2 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such Bank
may have.
11.3 Successors and Assigns.
----------------------
(a) The provisions of this Credit Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Bank and no Bank may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of paragraph (b) of this Section, (ii) by way of participation in
accordance with the provisions of paragraph (d) of this Section or (iii) by way
of pledge or assignment of a security interest subject to the restrictions of
paragraph (f) of this Section (and any other attempted assignment or transfer by
any party hereto shall be null and void). Nothing in this Credit Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in paragraph (d) of this Section and, to the
extent expressly contemplated hereby, the Indemnitees) any legal or equitable
right, remedy or claim under or by reason of this Credit Agreement.
79
(b) Any Bank may assign to one or more Eligible Assignees all or a portion
of its rights and obligations under this Credit Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in LOC Obligations and in Swingline Loans) at the
time owing to it); provided that (i) except in the case of an assignment of the
--------
entire remaining amount of the assigning Bank's Commitment and the Loans at the
time owing to it or in the case of an assignment to a Bank or an Affiliate of a
Bank or an Approved Fund with respect to a Bank, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder)
subject to each such assignment, determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent, shall not be less than $5,000,000 unless each of the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed), (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Bank's rights and obligations under this
Credit Agreement with respect to the Loans or the Commitment assigned, except
that this clause (ii) shall not apply to rights in respect of outstanding
Swingline Loans, (iii) any assignment of a Revolving Commitment must be approved
by the Administrative Agent and the Issuing Lender unless the Person that is the
proposed assignee is itself a Lender with a Revolving Commitment (whether or not
the proposed assignee would otherwise qualify as an Eligible Assignee), and (iv)
the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation
fee of $3,500. Subject to acceptance and recording thereof by the Administrative
Agent pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Acceptance, the Eligible Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Bank
under this Credit Agreement, and the assigning Bank thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Credit Agreement (and, in the case of an
Assignment and Acceptance covering all of the assigning Bank's rights and
obligations under this Credit Agreement, such Bank shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 11.5 and
11.9). Upon request, the Borrower (at its expense) shall execute and deliver new
or replacement Notes to the assigning Bank and the assignee Bank. Any assignment
or transfer by a Bank of rights or obligations under this Credit Agreement that
does not comply with this subsection shall be treated for purposes of this
Credit Agreement as a sale by such Bank of a participation in such rights and
obligations in accordance with subsection (d) of this Section. If the assignee
is a Non-U.S. Person, it shall deliver to the Credit Parties and the
Administrative Agent certification as to complete exemption from deduction or
withholding of Taxes in accordance with Section 3.11 and shall be subject to the
provisions of Section 3.11.
(c) The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at its office in Charlotte, North Carolina a copy
of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Banks, and the Commitments of, and
principal amount of the Loans and LOC Obligations owing to, each Bank pursuant
to the terms hereof from time to time (the "Register"). The entries in the
--------
Register shall be conclusive, and the Borrower, the Administrative Agent and the
Banks may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Bank hereunder for all purposes of this Credit Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Bank, at any reasonable time and from time to
time upon reasonable prior notice.
(d) Any Bank may, without the consent of, or notice to, the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Bank's rights and/or obligations
-----------
under this Credit Agreement (including all or a portion of its
80
Commitment and/or the Loans (including such Bank's participations in LOC
Obligations and/or Swingline Loans) owing to it); provided that (i) such Bank's
--------
obligations under this Credit Agreement shall remain unchanged, (ii) such Bank
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrower, the Administrative Agent and the
other Banks shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Credit Agreement.
Any agreement or instrument pursuant to which a Bank sells such a participation
shall provide that such Bank shall retain the sole right to enforce this Credit
Agreement and to approve any amendment, modification or waiver of any provision
of this Credit Agreement; provided that such agreement or instrument may provide
--------
that such Bank will not, without the consent of the Participant, agree to any
amendment, waiver or other modification that would (i) postpone any date upon
which any payment of money is scheduled to be paid to such Participant, (ii)
reduce the principal, interest, fees or other amounts payable to such
Participant or (iii) release all or substantially all of the Guarantors from
their obligations under the Credit Documents. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.6, 3.9, 3.11 and 3.12 to the same extent as if it were a
Bank and had acquired its interest by assignment pursuant to subsection (b) of
this Section and such Participant shall be subject to the limitations of such
Sections as if such Participant were a Bank hereunder. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 11.2
as though it were a Bank, provided such Participant agrees to be subject to
--------
Section 3.14 as though it were a Bank.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.6, 3.9 or 3.11 than the applicable Bank would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Bank if it were a
Bank shall not be entitled to the benefits of Section 3.11 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 3.11(d) as
though it were a Bank.
(f) Any Bank may at any time pledge or assign a security interest in all or
any portion of its rights under this Credit Agreement (including under its
Notes, if any) to secure obligations of such Bank, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
--------
such pledge or assignment shall release a Bank from any of its obligations
hereunder or substitute any such pledgee or assignee for such Bank as a party
hereto.
(h) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, (i) upon 30 days' notice to the
Borrower and the Banks, resign as Issuing Bank and/or (ii) upon 5 Business Days'
notice to the Borrower, resign as Swingline Bank. In the event of any such
resignation as Issuing Bank or as Swingline Bank, the Borrower shall be entitled
to appoint from among the Banks a successor Issuing Bank or Swingline Bank
hereunder; provided, however, that no failure by the Borrower to appoint any
-------- -------
such successor shall affect the resignation of Bank of America as Issuing Bank
or as Swingline Bank, as the case may be. Bank of America shall retain all the
rights and obligations of the Issuing Bank hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as Issuing
Bank and all LOC Obligations with respect thereto (including the right to
require the Banks to make Base Rate Loans or fund participations in Letters of
Credit pursuant to Section 2.6(b)). If Bank of America resigns as Swingline
Bank, it shall retain all the rights of the Swingline Bank provided for
hereunder with respect to Swingline Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Banks to
make Base Rate Loans or fund participations in outstanding Swingline Loans
pursuant to Section 2.7.
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11.4 No Waiver; Remedies Cumulative.
------------------------------
No failure or delay on the part of the Administrative Agent or any Bank in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Administrative Agent or any Bank
and any of the Credit Parties shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Administrative Agent or any Bank would otherwise
have. No notice to or demand on any Credit Party in any case shall entitle the
Credit Parties to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent
or the Banks to any other or further action in any circumstances without notice
or demand.
11.5 Expenses; Indemnification.
-------------------------
(a) The Credit Parties jointly and severally agree to pay within 30 days
upon presentation of an invoice all reasonable costs and expenses of the
Administrative Agent in connection with the syndication, preparation, execution,
delivery, administration, modification, and amendment of this Credit Agreement,
the other Credit Documents, and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and expenses of counsel for
the Administrative Agent with respect thereto and with respect to advising the
Administrative Agent as to its rights and responsibilities under the Credit
Documents. The Credit Parties further jointly and severally agree to pay within
30 days upon presentation of an invoice all reasonable costs and expenses of the
Administrative Agent and the Banks, if any (including, without limitation,
reasonable attorneys' fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings, or otherwise) of the Credit
Documents and the other documents to be delivered thereunder.
(b) Whether or not the transactions contemplated hereby are consummated,
the Borrower agrees to indemnify, save and hold harmless each Agent-Related
Person, each Bank and their respective Affiliates, directors, officers,
employees, counsel, agents and attorneys-in-fact (collectively the
"Indemnitees") from and against: (a) any and all claims, demands, actions or
-----------
causes of action that are asserted against any Indemnitee by any Person (other
than the Administrative Agent or any Bank) relating directly or indirectly to a
claim, demand, action or cause of action that such Person asserts or may assert
against any Credit Party, any Affiliate of any Credit Party or any of their
respective officers or directors; (b) any and all claims, demands, actions or
causes of action that may at any time (including at any time following repayment
of the Obligations and the resignation or removal of the Administrative Agent or
the replacement of any Bank) be asserted or imposed against any Indemnitee,
arising out of or relating to, the Credit Documents, any predecessor Credit
Documents, the Commitments, the use or contemplated use of the proceeds of any
Extension of Credit, or the relationship of any Credit Party, the Administrative
Agent and the Banks under this Credit Agreement or any other Credit Document;
(c) any administrative or investigative proceeding by any Governmental Authority
arising out of or related to a claim, demand, action or cause of action
described in subsection (a) or (b) above; and (d) any and all liabilities
(including liabilities under indemnities), losses, costs or expenses (including
reasonable fees and costs of counsel) that any Indemnitee suffers or incurs as a
result of the assertion of any foregoing claim, demand, action, cause of action
or proceeding, or as a result of the preparation of any defense in connection
with any foregoing claim, demand, action, cause of action or proceeding, in all
cases, whether or not arising out of the negligence of an Indemnitee, and
whether or not an Indemnitee is a party to such claim, demand, action, cause of
action or proceeding (all the foregoing, collectively, the "Indemnified
-----------
82
Liabilities"); provided that no Indemnitee shall be entitled to indemnification
----------- --------
for any claim caused by its own gross negligence or willful misconduct or for
any loss asserted against it by another Indemnitee. The agreements in this
Section shall survive the termination of the Commitments and repayment of all
the other Obligations.
(c) Without prejudice to the survival of any other agreement of the Credit
Parties hereunder, the agreements and obligations of the Credit Parties
contained in this Section 11.5 shall survive the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the termination
of the Commitments hereunder.
11.6 Amendments, Waivers and Consents.
--------------------------------
Neither this Credit Agreement nor any other Credit Document nor any of the
terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, the Required Banks and the
Borrower, provided, however, that:
-------- -------
(a) without the consent of each Bank affected thereby, neither this
Credit Agreement nor any other Credit Document may be amended to
(i) extend the final maturity of any Loan, or any portion
thereof, or extend the final maturity of any reimbursement obligation,
or any portion thereof, arising from drawings under Letters of Credit,
(ii) reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any
post-default increase in interest rates) thereon or Fees hereunder,
(iii) reduce or waive the principal amount of any Loan, or any
portion thereof, or reduce or waive the principal amount of any
reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit,
(iv) increase the Commitment of a Bank over the amount thereof in
effect (it being understood and agreed that a waiver of any Default or
Event of Default or mandatory reduction in the Commitments shall not
constitute a change in the terms of any Commitment of any Bank),
(v) release the Borrower or, except as the result of or in
connection with a dissolution, merger or disposition of a member of
the Consolidated Group permitted under Section 8.4, release any
Material Guarantor or all or substantially all of the other Guarantors
from its or their obligations under the Credit Documents,
(vi) amend, modify or waive any provision of this Section 11.6 or
Section 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, 3.15,
9.1(a), 11.2, 11.3, 11.5 or 11.9,
(vii) reduce any percentage specified in, or otherwise modify,
the definition of Required Banks, or
83
(viii) consent to the assignment or transfer by the Borrower, any
Material Guarantor or all or substantially all of the other Guarantors
of any of its or their rights and obligations under (or in respect of)
the Credit Documents except as permitted thereby;
(b) without the consent of the Administrative Agent, no provision of
Section 10 may be amended; and
(c) without the consent of the Issuing Bank, no provision of Section
2.1(b), 2.2(a)(ii) or 2.6 may be amended.
Notwithstanding the fact that the consent of all the Banks is required in
certain circumstances as set forth above, (x) each Bank is entitled to vote
as such Bank sees fit on any bankruptcy reorganization plan that affects
the Loans, and each Bank acknowledges that the provisions of Section
1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions
set forth herein and (y) the Required Banks may consent to allow a Credit
Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding.
11.7 Counterparts.
------------
This Credit Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart for each of the parties hereto. Delivery by facsimile by any of
the parties hereto of an executed counterpart of this Credit Agreement shall be
as effective as an original executed counterpart hereof and shall be deemed a
representation that an original executed counterpart hereof will be delivered.
11.8 Headings.
--------
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 Survival.
--------
All indemnities set forth herein, including, without limitation, in Section
2.6(h), 3.11, 3.12, 10.5 or 11.5 shall survive the execution and delivery of
this Credit Agreement, the making of the Loans, the issuance of the Letters of
Credit, the repayment of the Loans, LOC Obligations and other obligations under
the Credit Documents and the termination of the Commitments and this Agreement,
and all representations and warranties made by the Credit Parties herein shall
survive delivery of the Notes and the making of the Loans hereunder.
11.10 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial.
----------------------------------------------------------------------
(a) THIS CREDIT AGREEMENT AND, UNLESS OTHERWISE EXPRESSLY PROVIDED THEREIN,
THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA. Any legal action or
proceeding with respect to this Credit Agreement or any other Credit Document
may be brought in the courts of the Commonwealth of Virginia in City of
Richmond, or of the United States for the Eastern District of Virginia, and, by
execution and delivery of this Credit Agreement, each of the
84
Credit Parties hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the nonexclusive jurisdiction of such
courts. Each of the Credit Parties further irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out for notices pursuant to Section
11.1, such service to become effective thirty (30) days after such mailing.
Nothing herein shall affect the right of the Administrative Agent or any Bank to
serve process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against any Credit Party in any other
jurisdiction.
(b) Each of the Credit Parties hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Credit Agreement or any other Credit Document brought in the courts referred to
in subsection (a) above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
(c) EACH PARTY TO THIS CREDIT AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT
TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER
ANY CREDIT DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY CREDIT
DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND
EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS CREDIT AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.11 Severability.
------------
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 Entirety.
--------
This Credit Agreement together with the other Credit Documents represent
the entire agreement of the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the transactions
contemplated herein and therein.
11.13 Binding Effect; Termination.
---------------------------
(a) This Credit Agreement shall become effective at such time on or after
the Closing Date when it shall have been executed by each Credit Party and the
Administrative Agent, and the Administrative Agent shall have received copies
hereof (telefaxed or otherwise) which, when taken together, bear the
85
signatures of each Bank, and thereafter this Credit Agreement shall be binding
upon and inure to the benefit of each Credit Party, the Administrative Agent and
each Bank and their respective successors and assigns.
(b) The term of this Credit Agreement shall be until no Loans, LOC
Obligations or any other amounts payable hereunder or under any of the other
Credit Documents shall remain outstanding, no Letters of Credit shall be
outstanding, all of the Commitments shall have expired or been terminated and
this Agreement has been terminated.
11.14 Confidentiality.
---------------
Each of the Administrative Agent and the Banks agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential); (b) to the extent requested by any regulatory
authority; (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process; (d) to any other party to this Credit
Agreement; (e) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Credit Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any Eligible Assignee of
or Participant in, or any prospective Eligible Assignee of or Participant in,
any of its rights or obligations under this Credit Agreement or (ii) any direct
or indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of the Borrower;
(g) with the consent of the Borrower; (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent or any Bank on a
nonconfidential basis from a source other than the Borrower; or (i) to the
National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Bank's or its Affiliates' investment portfolio in connection
with ratings issued with respect to such Bank or its Affiliates. For the
purposes of this Section, "Information" means all information received from the
-----------
Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent or any Bank on a
nonconfidential basis prior to disclosure by the Borrower; provided that, in the
--------
case of information received from the Borrower after the date hereof, such
information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
11.15 Source of Funds.
---------------
Each of the Banks hereby represents and warrants to the Borrower that at
least one of the following statements is an accurate representation as to the
source of funds to be used by such Bank in connection with the financing
hereunder:
(a) no part of such funds constitutes assets allocated to any separate
account maintained by such Bank in which any employee benefit plan or any
plan (or its related trust) has any interest;
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(b) to the extent that any part of such funds constitutes assets
allocated to any bank collective investment fund maintained by such Bank,
such Bank has disclosed to the Borrower the name of each employee benefit
plan or plan whose assets in such fund exceed 10% of the total assets of
such fund as of the date of purchase and, with respect to any employee
benefit plan or plan whose interest in such fund does not exceed 10% of the
total assets of such fund as of the date of purchase, the requirements for
the application of Prohibited Transaction Class Exemption 91-38, 56 Fed.
Reg. 31,966 and 56 Fed Reg. 59,299 (1991) or the requirements of another
exemption have been satisfied;
(c) to the extent that any part of such funds constitute assets
allocated to any insurance company general asset account maintained by such
Bank, such Bank has disclosed to the Borrower the name of each employee
benefit plan or plan whose assets in such account exceed 10% of the total
assets of such account as of the date of purchase and, with respect to any
employee benefit plan or plan whose interest in such account does not
exceed 10% of the total assets of such account as of the date of purchase,
the requirements for the application of Prohibited Transaction Class
Exemption 95-60, 60 Fed. Reg. 35,925 (1995), the requirements prescribed by
the regulations under Section 401(c)(1)(A) of ERISA or the requirements of
another exemption have been satisfied;
(d) to the extent that any part of such funds constitute assets
allocated to any insurance company pooled separate account maintained by
such Bank, such Bank has disclosed to the Borrower the name of each
employee benefit plan or plan whose assets in such account exceed 10% of
the total assets of such account as of the date of purchase and, with
respect to any employee benefit plan or plan whose interest in such account
does not exceed 10% of the total assets of such account as of the date of
purchase, the requirements for the application of Prohibited Transaction
Class Exemption 90-1, Fed. Reg. 31,092 and 54 Fed. Reg. 32,024 (1989) or
the requirements of another exemption have been satisfied; or
(e) such funds constitute assets of one or more specific benefit
plans, not held in a bank collective investment fund, an insurance company
general asset account, an insurance company pooled separate account or
other investment fund, which such Bank has identified in writing to the
Borrower.
The determination of whether the interest of an employee benefit plan or plan in
a fund or account exceeds 10% of the total value of such fund or account shall
be determined in accordance with Prohibited Transaction Class Exemption 91-38,
95-60 and 90-1, as applicable, including (by way of example and not of
limitation), the requirement that all employee benefit plans or plans maintained
by one or more businesses or employee organizations that, under applicable law,
are considered to be the same employer or employee organization shall be deemed
to be a single employee benefit plan or plan.
As used in this Section 11.15, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA and the term "plan" shall have the respective meaning assigned to such
term in Section 4975(e)(1) of the Internal Revenue Code.
11.16 Conflict.
--------
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document, on
the other hand, this Credit Agreement shall control.
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[Signature Pages to Follow]
88
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: ▇▇▇▇▇ & MINOR, INC.,
-------- a Virginia corporation
By:
-------------------------------------
Name:
Title:
GUARANTORS: ▇▇▇▇▇ & MINOR MEDICAL, INC.,
---------- a Virginia corporation
▇▇▇▇▇ & MINOR DISTRIBUTION, INC.,
a Virginia corporation
By:
-------------------------------------
Name:
Title:
of each of the Guarantors
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
-------------------- in its capacity as Administrative Agent
By:
-------------------------------------
Name:
Title:
BANKS BANK OF AMERICA, N.A.,
----- in its capacity as a Bank
By:
-------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
-------------------------------------
Name:
Title:
SUNTRUST BANK
By:
-------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇ BROTHERS, INC.
By:
-------------------------------------
Name:
Title:
FLEET
By:
-------------------------------------
Name:
Title:
COMERICA BANK
By:
-------------------------------------
Name:
Title: