EXHIBIT 10.26
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of May 8, 2003
by and among
SUBURBAN PROPANE, L.P.,
as Borrower,
the Lenders referred to herein,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
FLEET NATIONAL BANK,
as Syndication Agent,
and
THE BANK OF NEW YORK,
as Documentation Agent
WACHOVIA SECURITIES, INC.,
as Lead Arranger
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the 8th day
of May, 2003, by and among SUBURBAN PROPANE, L.P., a limited partnership
organized under the laws of Delaware (the "BORROWER"), the Lenders who are or
may become a party hereto, in their capacity as Lenders and in such other
capacities as reflected on the signature pages hereto and WACHOVIA BANK,
NATIONAL ASSOCIATION (formerly known as First Union National Bank), as
Administrative Agent, and FLEET NATIONAL BANK, as Syndication Agent.
STATEMENT OF PURPOSE
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Pursuant to the Credit Agreement dated as of January 29, 2001 (as
amended by the First Amendment to Credit Agreement dated April 3, 2002, the
"ORIGINAL CREDIT AGREEMENT"), by and among the Borrower, the lenders party
thereto (the "ORIGINAL LENDERS") and the Administrative Agent, the Original
Lenders extended certain credit facilities to the Borrower pursuant to the terms
thereof.
The Borrower has requested, and, subject to the terms and conditions
hereof, the Administrative Agent and the Lenders have agreed, to amend and
restate the Original Credit Agreement on the terms and conditions of this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree that the Original Credit Agreement is hereby amended and restated
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. The following terms when used in this Agreement
shall have the meanings assigned to them below:
"ACQUISITION COMMITMENT" means, (a) as to any Lender, the obligation of
such Lender to make Acquisition Loans to the Borrower hereunder in an aggregate
principal amount at any time outstanding not to exceed the amount so designated
opposite such Lender's name on SCHEDULE 1.1(A) hereto, as the same may be
increased or reduced at any time or from time to time pursuant to the terms
hereof, and (b) as to all Lenders, the aggregate commitment of all Lenders to
make Acquisition Loans, as such amount may be increased or reduced at any time
from time to time pursuant to the terms hereof. The Acquisition Commitment of
all Lenders on the Closing Date shall be Twenty Five Million Dollars
($25,000,000).
"ACQUISITION COMMITMENT PERCENTAGE" means, as to any Lender at anytime, the
ratio of (a) the amount of the Acquisition Commitment of such Lender to (b) the
Acquisition Commitment of all of the Lenders.
"ACQUISITION FACILITY" means the acquisition loan facility established
pursuant to Article II hereof.
"ACQUISITION LOAN" means any of the acquisition loans made by the Lenders
to the Borrower pursuant to SECTION 2.4 and all such loans collectively as the
context requires.
"ACQUISITION NOTES" means the separate Acquisition Notes made by the
Borrower payable to the order of each Lender, substantially in the form of
EXHIBIT A-2 hereto, evidencing the Acquisition Facility, and any amendments and
modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extension thereof, in whole or in part; "ACQUISITION
NOTE" means any of such Acquisition Notes.
"ADMINISTRATIVE AGENT" means Wachovia in its capacity as Administrative
Agent hereunder, and any successor thereto appointed pursuant to SECTION 12.9.
"ADMINISTRATIVE AGENT'S OFFICE" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of SECTION
13.1.
"AFFILIATE" means, with respect to any Person, any other Person (other than
a Subsidiary) which directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such first
Person or any of its Subsidiaries. The term "control" means the possession,
directly or indirectly, of any other power to direct or cause the direction of
the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"AGGREGATE COMMITMENT" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be increased, reduced or otherwise
modified at any time or from time to time pursuant to the terms hereof. On the
Closing Date, the Aggregate Commitment shall be One Hundred Million Dollars
($100,000,000).
"AGREEMENT" means this Second Amended and Restated Credit Agreement, as
further amended, restated, supplemented or otherwise modified from time to time.
"APPLICABLE LAW" means all applicable provisions of constitutions,
statutes, laws, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of all Governmental Authorities and all
orders and decrees of all courts and arbitrators.
"APPLICABLE MARGIN" has the meaning assigned thereto in SECTION 4.7(C).
"APPLICATION" means an application, in the form specified by the Issuing
Lender from time to time, requesting the Issuing Lender to issue a Letter of
Credit.
"ASSIGNMENT AND ACCEPTANCE" has the meaning assigned thereto in SECTION
13.10.
"AVAILABLE CASH" means, with respect to any fiscal quarter of the Borrower:
(a) the sum of the following, without duplication, (i) all cash and
cash equivalents of the Borrower and its Subsidiaries on hand at the end of
such quarter, (ii) all additional cash and cash equivalents of the Borrower
and its Subsidiaries on hand on the date of determination of Available Cash
with respect to such quarter resulting from borrowings hereunder and (iii)
the amount of the Revolving Credit Commitment available to be borrowed
hereunder on the date of determination of Available Cash, LESS
(b) the amount of cash reserves that is necessary or appropriate in
the reasonable discretion of the Board of Supervisors of the Borrower to
(i) provide for the proper conduct of the business of the Borrower and its
Subsidiaries (including reserves for future capital expenditures)
subsequent to such quarter, (ii) comply with Applicable Law or any loan
agreement (including, but not limited to, this Agreement), security
agreement, mortgage, debt instrument or other agreement or obligation to
which the Borrower or any Subsidiary is a party or by which it is bound or
its assets are subject and which is permitted by the terms hereof or (iii)
provide funds for distributions to partners of the Parent and the General
Partner in respect of any one or more of the next succeeding four fiscal
quarters; PROVIDED that the Board of Supervisors shall not establish cash
reserves pursuant to clause (iii) if the effect of such reserves would be
that the Parent is unable to distribute the Minimum Quarterly Distribution
on the Common Units with respect to such quarter; and PROVIDED, FURTHER,
that disbursements made or cash reserves established, increased or reduced
after the end of such quarter but on or before the date of determination of
Available Cash with respect to such quarter shall be deemed to have been
made, established, increased or reduced, for purposes of determining
Available Cash, within such quarter if the Board of Supervisors of the
Borrower so determines.
In addition, without limitation or duplication of the foregoing, Available
Cash for any fiscal quarter shall reflect reserves equal to (A) 50% of the
interest projected to be paid on the Senior Notes, the Refinancing Notes and any
Loans outstanding or projected to be outstanding hereunder in the next
succeeding fiscal quarter and (B) beginning with a date three fiscal quarters
before a scheduled principal payment date on the Senior Notes, the Refinancing
Notes or the Loans, 25% of the aggregate principal amount thereof due on any
such payment date in the third succeeding fiscal quarter, 50% of the aggregate
principal amount due on any such quarterly payment date in the second succeeding
fiscal quarter and 75% of the aggregate principal amount due on any quarterly
payment date in the next succeeding fiscal quarter and (C) the aggregate amount
deemed not to constitute Designated Net Proceeds pursuant to the further proviso
contained in the definition of "Designated Net Proceeds". The foregoing reserves
for amounts to be paid at any time shall be reduced by the amount of the Blocked
Portion then in effect.
"BASE RATE" means, at any time, the higher of (a) the Prime Rate or (b) the
Federal Funds Rate PLUS 1/2 of 1%; each change in the Base Rate shall take
effect simultaneously with the corresponding change or changes in the Prime Rate
or the Federal Funds Rate.
"BASE RATE LOAN" means any Loan bearing interest at a rate based upon the
Base Rate as provided in SECTION 4.7(A).
"BENEFITED LENDER" has the meaning assigned thereto in SECTION 4.12.
"BLOCKED PORTION" has the meaning assigned thereto in SECTION 2.1(B).
"BOARD OF SUPERVISORS" means, with respect to the Parent or the Borrower,
as the case may be, such Board of Supervisors as defined in the Parent
Partnership Agreement or the Borrower Partnership Agreement, as applicable.
"BORROWER" means Suburban Propane, L.P. in its capacity as borrower
hereunder.
"BORROWER PARTNERSHIP AGREEMENT" means the Second Amended and Restated
Agreement of Limited Partnership of the Borrower, dated as of May 26, 1999, as
it may be amended, supplemented or otherwise modified from time to time pursuant
to the terms hereof.
"BUSINESS" means the propane business, assets and liabilities of the
Borrower and its Subsidiaries.
"BUSINESS DAY" means (a) for all purposes other than as set forth in clause
(b) below, any day other than a Saturday, Sunday or legal holiday on which banks
in Charlotte, North Carolina and New York, New York, are open for the conduct of
their commercial banking business, and (b) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
any LIBOR Rate Loan, any day that is a Business Day described in clause (a) and
that is also a day for trading by and between banks in Dollar deposits in the
London interbank market.
"CAPITAL ASSET" means, with respect to the Borrower and its Subsidiaries,
any asset that should, in accordance with GAAP, be classified and accounted for
as a capital asset on a Consolidated balance sheet of the Borrower and its
Subsidiaries.
"CAPITAL LEASE" means, with respect to the Borrower and its Subsidiaries,
any lease of any property that should, in accordance with GAAP, be classified
and accounted for as a capital lease on a Consolidated balance sheet of the
Borrower and its Subsidiaries.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any preferred stock, any limited or general partnership interest and
any limited liability company membership interest.
"CHANGE IN OWNERSHIP" means the occurrence, at any time prior to the
Termination Date, of any of the following events: (a) any Person or group of
Persons, other than those Persons owning Capital Stock of the General Partner on
the Closing Date, shall acquire, directly or indirectly, (i) more than 50% of
the outstanding Capital Stock of the General Partner entitled to vote in the
election or removal of the members of the Board of Supervisors or (ii)
outstanding Capital Stock of the General Partner entitled to more than 50% of
the assets of the General Partner upon the dissolution or liquidation thereof,
(b) the General Partner shall fail to own directly or indirectly, beneficially
and of record, 100% of the general partner interests in each of the Parent and
the Borrower, (c) a majority of the seats (excluding vacant seats) on the Board
of Supervisors of the Parent or the Borrower should at any time after the
Closing Date be occupied by Persons who were not nominated by the General
Partner, by a majority of the Board of Supervisors of the Parent or the Borrower
or by Persons so nominated or (d) a change in control with respect to the
General Partner, the Parent, or the Borrower (or similar event, however
denominated) should occur under and as defined in any indenture or agreement in
respect of Indebtedness in an aggregate outstanding principal amount in excess
of $10,000,000 to which the General Partner, the Parent, the Borrower or any
Subsidiary is party.
"CLEANDOWN PERIOD" means a period of thirty (30) consecutive days selected
by the Borrower during each Fiscal Year.
"CLOSING DATE" means the date of this Agreement or such later Business Day
upon which each condition described in Article V shall be satisfied or waived in
all respects in a manner acceptable to the Administrative Agent, in its sole
discretion.
"CODE" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or supplemented from time to time.
"COMMITMENT" means, as to any Lender, on a collective basis, such Lender's
Acquisition Commitment and Revolving Credit Commitment, as set forth opposite
such Lender's name on SCHEDULE 1.1(A) hereto, as the same may be reduced or
modified at any time or from time to time pursuant to the terms hereof.
"COMMITMENT PERCENTAGE" means, as to any Lender at any time, the ratio of
(a) the amount of the Commitment of such Lender to (b) the Aggregate Commitment
of all of the Lenders.
"COMMODITY HEDGING AGREEMENT" means any agreement with respect to a
commodity swap or other agreement regarding the hedging of commodity purchase
and sale exposure executed in connection with hedging the commodity purchase and
sale exposure of the Borrower and its Subsidiaries, and any confirming letter
executed pursuant to such commodity hedging agreement, all as amended, restated
or otherwise modified.
"COMMON UNITS" means Common Units of the Parent representing limited
partner interests in the Parent.
"CONSOLIDATED" means, when used with reference to financial statements or
financial statement items of the Borrower and its Subsidiaries, such statements
or items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"CONTINGENT OBLIGATION" means, with respect to the Borrower and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Indebtedness or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Indebtedness or other
obligation (whether arising by virtue of partnership arrangements, by agreement
to keep well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement condition or otherwise) or (b) entered into
for the purpose of assuring in any other manner the obligee of such Indebtedness
or other obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part); PROVIDED, that the term
Contingent Obligation shall not include endorsements for collection or deposit
in the ordinary course of business.
"COVERED PERSONS" has the meaning assigned thereto in the definition of
Restricted Payment.
"CREDIT FACILITIES" means the collective reference to the Revolving Credit
Facility, the Acquisition Facility and the L/C Facility.
"DEFAULT" means any of the events specified in SECTION 11.1, which with the
passage of time, the giving of notice or any other condition, would constitute
an Event of Default.
"DESIGNATED NET PROCEEDS" means 100% of all proceeds in cash or cash
equivalents (including cash proceeds subsequently received in respect of noncash
consideration initially received), net of selling expenses (including reasonable
broker's fees or commissions, reasonable attorneys' and accountants' fees and
expenses incurred in connection therewith, transfer and similar taxes, the
Borrower's good faith estimate of income taxes incurred in connection with the
receipt of such proceeds and appropriate reserves to be provided by the Borrower
or any Subsidiary as a reserve required in accordance with GAAP against any
liabilities associated with such sale, transfer or other disposition and
retained by the Borrower or such Subsidiary after such sale, transfer or
disposition), from any sale, transfer or other disposition (other than the sale
of inventory in the ordinary course) of any asset or assets of the Borrower or
any Subsidiary (including the sale or issuance of any Capital Stock of any
Subsidiary) to any Person in any transaction, transactions or related series of
transactions; PROVIDED, that the first $15,000,000 of such net proceeds received
in any Fiscal Year (the "EXEMPT PROCEEDS") shall not constitute Designated Net
Proceeds; PROVIDED FURTHER, that if the Borrower shall deliver a certificate of
a Responsible Officer to the Administrative Agent promptly following receipt of
any such proceeds in any Fiscal Year in excess of the Exempt Proceeds for such
Fiscal Year certifying that the Borrower intends to use any portion of such
excess proceeds to acquire productive assets in the same line of business as the
assets sold within twelve (12) months of receipt thereof, such portion shall not
constitute Designated Net Proceeds except to the extent not so used within such
twelve (12) month period.
"DESIGNATED NET INSURANCE/CONDEMNATION PROCEEDS" means 100% of all
insurance or condemnation proceeds received in cash or cash equivalents, net of
reasonable costs of proceedings in connection therewith and any settlement in
respect thereof, from any damage, destruction, condemnation or other taking
involving insurance or condemnation proceeds in excess of $100,000 with respect
to any single occurrence; PROVIDED, that the first $2,500,000 of such net
proceeds received in any Fiscal Year (the "EXEMPT INSURANCE/CONDEMNATION
PROCEEDS") shall not constitute Designated Net Insurance/Condemnation Proceeds;
PROVIDED FURTHER, that if the Borrower shall deliver a certificate of a
Responsible Officer to the Administrative Agent promptly following receipt of
any such proceeds in any Fiscal Year in excess of the Exempt
Insurance/Condemnation Proceeds for such Fiscal Year certifying that the
Borrower intends to use any portion of such excess proceeds to restore, modify
or replace the properties or assets in respect of which such insurance or
condemnation proceeds were received within twelve (12) months of such receipt,
such portion shall not constitute Designated Net Insurance/Condemnation Proceeds
except to the extent not so used within such twelve (12) month period.
"DISPUTES" has the meaning set forth in SECTION 13.6.
"DOLLARS" OR "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"EBITDA" means, with respect to the Borrower and its Subsidiaries on a
Consolidated basis for any period, computed in accordance with GAAP, the
Consolidated net income of the Borrower and its Subsidiaries for such period,
PLUS, to the extent deducted in computing such Consolidated net income and
without duplication, the sum of (a) income tax expense, (b) Interest Expense,
(c) depreciation and amortization expense, (d) extraordinary losses during such
period, and (e) other cash restructuring charges, in an aggregate amount not to
exceed $5,000,000 during the term of the Credit Facilities MINUS, to the extent
added in computing such Consolidated net income and without duplication,
extraordinary gains during such period; PROVIDED, that (i) for the purposes of
determining EBITDA for any period during which a Permitted Business Acquisition
is consummated, EBITDA shall be adjusted in a manner reasonably satisfactory to
the Administrative Agent to give effect to the consummation of such Permitted
Business Acquisition on a PRO FORMA basis in accordance with GAAP, as if such
Permitted Business Acquisition occurred on the first day of such period and (ii)
EBITDA shall exclude all unrealized gains and losses reported under Financial
Accounting Standards Board Statement No. 133 in connection with forward
contracts, futures contracts or other derivatives or Commodity Hedging
Agreements for the future delivery of propane in accordance with the Borrower's
existing commodity hedging policy.
"ELIGIBLE ASSIGNEE" means, with respect to any assignment of the rights,
interest and obligations of a Lender hereunder, a Person that is at the time of
such assignment (a) a commercial bank organized or licensed under the laws of
the United States or any state thereof, having combined capital and surplus in
excess of $500,000,000, (b) a commercial bank organized under the laws of any
other country that is a member of the Organization of Economic Cooperation and
Development, or a political subdivision of any such country, having combined
capital and surplus in excess of $500,000,000, (c) a finance company, insurance
company or other financial institution which in the ordinary course of business
extends credit of the type extended hereunder and that has total assets in
excess of $1,000,000,000, (d) already a Lender hereunder (whether as an original
party to this Agreement or as the assignee of another Lender) or an Affiliate or
Subsidiary thereof, (e) the successor (whether by transfer of assets, merger or
otherwise) to all or substantially all of the commercial lending business of the
assigning Lender, or (f) any other Person that has been approved in writing as
an Eligible Assignee by the Administrative Agent and, if no Default or Event of
Default exists and is continuing, the Borrower.
"EMPLOYEE BENEFIT PLAN" means any employee benefit plan within the meaning
of Section 3(3) of ERISA which (a) is maintained for employees of the Borrower
or any ERISA Affiliate or (b) has at any time within the preceding six years
been maintained for the employees of the Borrower or any current or former ERISA
Affiliate.
"ENVIRONMENTAL AND SAFETY LAWS" means any and all federal, state and local
laws, statutes, ordinances, rules, regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities, relating to
the protection of human health (including, but not limited to employee health
and safety) or the environment, including, but not limited to, requirements
pertaining to the manufacture, processing, distribution, use, treatment,
storage, disposal, transportation, handling, reporting, licensing, permitting,
investigation or remediation of Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and the
rules and regulations thereunder, each as amended or modified from time to time.
"ERISA AFFILIATE" means any Person who together with the Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"ERISA EVENT" means (i) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to a Pension
Plan; (ii) the adoption of any amendment to a Pension Plan that would
require
the provision of security pursuant to Section 401(a)(29) of the Code or Section
307 of ERISA; (iii) the existence with respect to any Pension Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (iv) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Pension Plan; (v) the
incurrence of any liability under Title IV of ERISA with respect to the
termination of any Pension Plan or the withdrawal or partial withdrawal of the
Borrower or any of its ERISA Affiliates from any Pension Plan or Multiemployer
Plan; (vi) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to the intention to terminate any
Pension Plan or Pension Plans or to appoint a trustee to administer any Pension
Plan; (vii) the receipt by the Borrower or any ERISA Affiliate of any notice
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA or the institution of proceedings to
terminate, or the appointment of a trustee with respect to, any Pension Plan by
the PBGC; (viii) the occurrence of a "prohibited transaction" with respect to
which the Borrower or any of its subsidiaries is a "disqualified person" (within
the meaning of Section 4975 of the Code) and with respect to which the Borrower
or any such subsidiary would be liable for the payment of an excise tax and (ix)
any other event or condition which would constitute grounds under Section
4042(a) of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of Eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City.
"EVENT OF DEFAULT" means any of the events specified in SECTION 11.1;
PROVIDED that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"EXEMPT INSURANCE/CONDEMNATION PROCEEDS" has the meaning assigned such term
in the definition of Designated Net Insurance/Condemnation Proceeds.
"EXEMPT PROCEEDS" has the meaning assigned such term in the definition of
Designated Net Proceeds.
"EXTENSIONS OF CREDIT" means, as to any Lender at any time, an amount equal
to the sum of (a) the aggregate principal amount of all Revolving Credit Loans
made by such Lender then outstanding, (b) the aggregate principal amount of all
Acquisition Loans made by such Lender then outstanding, (c) such Lender's
Commitment Percentage of the L/C Obligations then outstanding and (d) such
Lender's Commitment Percentage of the Swingline Loans then outstanding.
"FDIC" means the Federal Deposit Insurance Corporation, or any successor
thereto.
"FEDERAL FUNDS RATE" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" means a daily rate which
is determined, in the opinion of the Administrative Agent, to be the rate at
which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be
the same as the rate for the most immediate preceding Business Day.
"FINANCIAL OFFICER" means, as to any Person, the chief financial officer,
the treasurer or the principal accounting officer of such Person.
"FISCAL YEAR" means the 52-week fiscal year of the Borrower and its
Subsidiaries ending on the last Saturday in September.
"GAAP" means generally accepted accounting principles, as recognized by the
American Institute of Certified Public Accountants and the Financial Accounting
Standards Board, consistently applied and maintained on a consistent basis for
the Borrower and its Subsidiaries throughout the period indicated and consistent
with the prior financial practice of the Borrower and its Subsidiaries.
"GENERAL PARTNER" means Suburban Energy Services Group LLC, a Delaware
limited liability company.
"GENERAL PARTNER UNIT" means a unit representing a fractional part of the
General Partner's general partner interest in the Parent (which shall exclude
any limited partner or other interest that the General Partner may have from
time to time in the Parent).
"GOVERNMENTAL APPROVALS" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"GOVERNMENTAL AUTHORITY" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"GUARANTEE" of or by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the "primary obligor")
(excluding endorsements of checks for collection or deposit in the ordinary
course of business) in any manner, whether directly or indirectly, and including
any obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (ii) to purchase property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (iii) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness.
"GUARANTEE AGREEMENT" means the Amended and Restated Guarantee Agreement
dated as of the date hereof executed by each Subsidiary of the Borrower (other
than any foreign Subsidiary and Suburban Sales and Service, Inc.) for the
benefit of the Lenders and the Administrative Agent.
"GUARANTOR" means each Subsidiary that is party to the Guarantee Agreement
on the Closing Date together with any Subsidiary who becomes a party to the
Guarantee Agreement after the Closing Date in accordance with the terms of
SECTION 8.7; PROVIDED, that Suburban Sales and Service, Inc. shall not be
required to become a Guarantor.
"HEDGING AGREEMENT" means any (a) interest rate swap agreement, (b)
interest rate cap agreement, (c) interest rate floor agreement, (d) interest
rate collar agreement, (e) interest rate option or (f) other agreement, in each
case, entered into with the intent to protect the Borrower against fluctuations
in interest rates of existing or expected issuances of Indebtedness and entered
into as a bona fide hedging agreement and not for purposes of investment or
speculation and any confirming letter executed pursuant to such agreement, all
as amended, restated, supplemented or otherwise modified from time to time.
"INDEBTEDNESS" means, with respect to any Person, without duplication (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind (including repurchase obligations), (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments or
letters of credit in support of bonds, notes, debentures or similar instruments,
(c) all obligations of such Person upon which interest charges are customarily
paid, (d) all obligations of such Person under any conditional sale or other
title retention agreement relating to property purchased by such Person, (e) all
obligations of such Person issued or assumed as the deferred purchase price of
property or services, (f) all obligations under Capital Leases of such Person,
(g) all obligations of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property or assets owned or acquired by such Person, whether or not
the obligations secured thereby have been assumed, (h) all Guarantees of such
Person, (i) all obligations of such Person with respect to Swap Agreements and
Commodity Hedging Agreements (valued at the termination value thereof computed
in accordance with a method approved by the International Swap Dealers
Association and agreed to by such Person in the applicable Swap Agreement or
Commodity Hedging Agreement, if any), (j) all obligations of such Person as an
account party in respect of letters of credit (i) securing Indebtedness (other
than letters of credit obtained in the ordinary course of business and
consistent with past practices) or (ii) obtained for any purpose not in the
ordinary course of business or not consistent with past practices and (k) all
obligations of such Person in respect of bankers' acceptances; PROVIDED that
accounts payable to suppliers incurred in the ordinary course of business and
paid in the ordinary course of business consistent with past practices shall not
constitute Indebtedness.
"INTEREST EXPENSE" means, with respect to any period, the sum of, without
duplication, gross interest expense and capitalized interest of the Borrower and
its Subsidiaries for such period MINUS interest income of the Borrower and its
Subsidiaries for such period, determined on a Consolidated basis in accordance
with GAAP.
"INTEREST PERIOD" has the meaning assigned thereto in SECTION 4.7(B).
"INVESTMENT" means, as applied to any Person, any direct or indirect
purchase or other acquisition by such Person of stock or other securities of any
other Person, or any direct or indirect loan, advance or capital contribution by
such Person to any other Person and any other item which would be classified as
an "investment" on a balance sheet of such Person prepared in accordance with
GAAP, including without limitation any direct or indirect contribution by such
Person of property or assets to a joint venture, partnership or other business
entity in which such Person retains an interest (it being understood that a
direct or indirect purchase or other acquisition by such Person of assets of any
other Person (other than stock or other securities) shall not constitute an
"Investment" for purposes of this Agreement).
"ISP98" means the International Standby Practices (1998 Revision, effective
January 1, 1999), International Chamber of Commerce Publication No. 590.
"ISSUING LENDER" means Wachovia, in its capacity as issuer of any Letter of
Credit, or any successor thereto.
"L/C COMMITMENT" means the lesser of (a) Fifteen Million Dollars
($15,000,000) and (b) the Revolving Credit Commitment.
"L/C FACILITY" means the letter of credit facility established pursuant to
Article III.
"L/C OBLIGATIONS" means at any time, an amount equal to the sum of (a) the
aggregate undrawn and unexpired amount of the then outstanding Letters of Credit
and (b) the aggregate amount of drawings under Letters of Credit which have not
then been reimbursed pursuant to SECTION 3.5.
"L/C PARTICIPANTS" means the collective reference to all the Lenders other
than the Issuing Lender.
"LENDER" means each Person executing this Agreement as a Lender (including,
without limitation, the Issuing Lender and the Swingline Lender unless the
context otherwise requires) set forth on the signature pages hereto and each
Person that hereafter becomes a party to this Agreement as a Lender pursuant to
SECTION 13.10.
"LENDER ADDITION AND ACKNOWLEDGMENT AGREEMENT" means each agreement
executed pursuant to SECTION 2.5 by the Borrower and an existing Lender or
Supplemental Lender, as applicable, and acknowledged by the Administrative Agent
and each Guarantor, in the form attached hereto as EXHIBIT I, providing for an
increase in the Acquisition Commitment hereunder, acknowledging that any
Supplemental Lender shall be a party hereto and have the rights and obligations
of a Lender hereunder, and setting forth the Commitment of each Lender.
"LENDERS' PORTION" means, with respect to any Designated Net Proceeds or
any Designated Net Insurance/Condemnation Proceeds, the ratio, expressed as a
percentage, in effect as of noon, Charlotte time, on the date on which such
Designated Net Proceeds or Designated Net Insurance/Condemnation Proceeds, as
applicable, are being applied pursuant to SECTION 4.2(D), of (i) the Aggregate
Commitment to (ii) the sum of (x) the amount referred to in clause (i) and (y)
the aggregate principal amount at such time of the Senior Notes.
"LENDING OFFICE" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Loans.
"LETTERS OF CREDIT" has the meaning assigned thereto in SECTION 3.1 and
shall include the Wachovia Letter of Credit.
"LEVERAGE RATIO" means, on any date, the ratio of (a) Total Indebtedness as
of such date to (b) an amount equal to the aggregate amount of EBITDA of the
Borrower and its Subsidiaries for the period of four consecutive fiscal quarters
ended most recently on or prior to such date, determined on a Consolidated basis
in accordance with GAAP.
"LIBOR" means the rate of interest per annum determined on the basis of the
rate for deposits in Dollars in minimum amounts of at least $5,000,000 for a
period equal to the Interest Period selected which appears on the Telerate Page
Screen 3750 at approximately 11:00 a.m. London time, two (2) Business Days prior
to the first day of the applicable Interest Period (rounded upward, if
necessary, to the nearest one-one hundredth of one percent (1/100%)). If, for
any reason, such rate does not appear on Telerate Page Screen 3750, then "LIBOR"
shall be determined by the Administrative Agent to be the arithmetic average of
the rate per annum at which deposits in Dollars in minimum amounts of at least
$5,000,000 would be offered by first class banks in the London interbank market
to the Administrative Agent at approximately 11:00 a.m. London time, two (2)
Business Days prior to the first day of the applicable Interest Period for
settlement in immediately available funds by leading banks in the London
interbank market for a period equal to the Interest Period selected. Each
calculation by the Administrative Agent of LIBOR shall be conclusive and binding
for all purposes, absent manifest error.
"LIBOR RATE" means a rate per annum (rounded upwards, if necessary, to the
next higher 1/100th of 1%) determined by the Administrative Agent pursuant to
the following formula:
LIBOR Rate = LIBOR
----------------------------------
1.00-Eurodollar Reserve Percentage
"LIBOR RATE LOAN" means any Loan bearing interest at a rate based upon the
LIBOR Rate as provided in SECTION 4.7(A).
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, hypothecation or encumbrance of any kind in respect
of such asset. For the purposes of this Agreement, a Person shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement relating to such asset.
"LOAN" means any Revolving Credit Loan, Acquisition Loan or Swingline Loan
made to the Borrower pursuant to Article II, and all such Loans collectively as
the context requires.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes, the
Applications, the Guarantee Agreement and each other document, instrument,
certificate and agreement executed and delivered by the Borrower, its
Subsidiaries or their counsel in connection with this Agreement or otherwise
referred to herein or contemplated hereby (excluding any Swap Agreement), all as
may be amended, restated, supplemented or otherwise modified from time to time.
"MATERIAL ADVERSE EFFECT" means (a) a materially adverse effect on the
business, assets, operations, prospects or financial condition of the Business,
the General Partner, the Parent, the Borrower or the Borrower and its
Subsidiaries taken as a whole, (b) any material impairment of the ability of the
Borrower or any Subsidiary to perform any of its Obligations under any Loan
Document or (c) any material impairment of the rights of or benefits available
to the Lenders or the Administrative Agent under any of the Loan Documents.
"MINIMUM QUARTERLY DISTRIBUTION" has the meaning assigned thereto in the
Parent Partnership Agreement.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making, or
is accruing an obligation to make, or has accrued an obligation to make
contributions within the preceding six (6) years.
"NOTES" means the collective reference to the Revolving Credit Notes, the
Acquisition Notes and the Swingline Note; "NOTE" means any of such Notes.
"NOTICE OF ACCOUNT DESIGNATION" has the meaning assigned thereto in SECTION
4.1(B).
"NOTICE OF BORROWING" has the meaning assigned thereto in SECTION 4.1(A).
"NOTICE OF CONVERSION/CONTINUATION" has the meaning assigned thereto in
SECTION 4.8.
"NOTICE OF PREPAYMENT" has the meaning assigned thereto in SECTION 4.2(C).
"OBLIGATIONS" means, in each case, whether now in existence or hereafter
arising: (a) the principal of and interest on (including interest accruing after
the filing of any bankruptcy or similar petition) the Loans, (b) the L/C
Obligations, (c) all Swap Obligations and (d) all other fees and commissions
(including attorney's fees), charges, indebtedness, loans, liabilities,
financial accommodations, obligations, covenants and duties owing by the
Borrower or any of its Subsidiaries to the Lenders or the Administrative Agent,
in each case under or in respect of this Agreement, any Note, any Letter of
Credit or any of the other Loan Documents of every kind, nature and description,
direct or indirect, absolute or contingent, due or to become due, contractual or
tortious, liquidated or unliquidated, and whether or not evidenced by any note,
and whether or not for the payment of money under or in respect of this
Agreement, any Note, any Letter of Credit or any of the other Loan Documents.
"OFFICER'S COMPLIANCE CERTIFICATE" has the meaning assigned thereto in
SECTION 7.2.
"ORIGINAL CREDIT AGREEMENT" has the meaning set forth in the Statement of
Purpose.
"OTHER TAXES" has the meaning assigned thereto in SECTION 4.17(B).
"PARENT" means Suburban Propane Partners, L.P., a limited partnership
organized under the laws of the State of Delaware.
"PARENT PARTNERSHIP AGREEMENT" means the Second Amended and Restated
Agreement of Limited Partnership of the Parent dated as of May 26, 1999, as it
may be amended, supplemented or otherwise modified from time to time pursuant to
the terms hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"PARTNERSHIP DOCUMENTS" means the Parent Partnership Agreement and the
Borrower Partnership Agreement, in each case as in effect on the date hereof and
as the same may from time to time be amended, supplemented or otherwise modified
in accordance with the terms hereof and thereof.
"PENSION PLAN" means any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of
the Code and which (a) is maintained for employees of the Borrower or any ERISA
Affiliates or (b) has at any time within the preceding six years been maintained
for the employees of the Borrower or any of their current or former ERISA
Affiliates.
"PERMITTED BANKS" has the meaning assigned to such term in SECTION 10.4(C).
"PERMITTED BUSINESS ACQUISITION" means any acquisition of all or
substantially all the assets of, or all the shares or other equity interests in,
a Person or division or line of business of a Person (or any subsequent
investment made in a previously acquired Permitted Business Acquisition) if
immediately after giving effect thereto: (a) no Event of Default or Default or
Senior Note Default shall have occurred and be continuing or would result
therefrom, (b) all transactions related thereto shall be consummated in
accordance with applicable laws, (c) all the Capital Stock of any acquired or
newly formed corporation, partnership, association or other business entity is
owned directly by the Borrower or a domestic Wholly-Owned Subsidiary and such
acquired or newly formed Subsidiary shall have entered into the Guarantee
Agreement, (d) the Borrower and its Subsidiaries shall be in compliance, on a
pro forma basis after giving effect to such acquisition or formation, with the
covenants contained in Article IX recomputed as at the last day of the most
recently ended fiscal quarter of the Borrower and its Subsidiaries as if such
acquisition had occurred on the first day of each relevant period for testing
such compliance, and, in the case of any transaction involving consideration
(whether cash or property, as valued at the time such transaction is
consummated) in excess of $5,000,000, the Borrower shall have delivered to the
Administrative Agent a certificate of a Responsible Officer to such effect,
together with all relevant financial information for such Subsidiary or assets
and calculations demonstrating such compliance, (e) any acquired or newly formed
Subsidiary shall not be liable for any Indebtedness (except for Indebtedness
permitted by SECTION 10.1) and (f) the Required Lenders shall have given their
prior written consent (which consent shall not be unreasonably withheld, taking
into consideration the merits of the acquisition) in the case of (i) any
acquisition outside the business currently conducted by the Borrower involving
consideration (whether cash or property, as valued at the time each investment
is made) in excess of $5,000,000 and (ii) any acquisition if as a result thereof
the aggregate consideration (whether cash or property, as valued at the time
each investment is made) for all acquisitions (net of return of capital of (but
not return on) investments in such acquisitions) would be in excess of
$25,000,000.
"PERSON" means an individual, corporation, limited liability company,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"PRIME RATE" means, at any time, the rate of interest per annum publicly
announced from time to time by Wachovia as its prime rate. Each change in the
Prime Rate shall be effective as of the opening of business on the day such
change in the Prime Rate occurs. The parties hereto acknowledge that the rate
announced publicly by Wachovia as its Prime Rate is an index or base rate and
shall not necessarily be its lowest or best rate charged to its customers or
other banks.
"PROPOSED INCREASED COMMITMENT" shall have the meaning assigned thereto in
Section 2.5.
"REFINANCING NOTE AGREEMENT" means one or more indentures or agreements
pursuant to which Refinancing Notes are issued.
"REFINANCING NOTES" means one or more series of notes issued by the
Borrower, the net proceeds of which are used by the Borrower to (a) redeem
Senior Notes or (b) refinance the Senior Note Payments.
"REGISTER" has the meaning assigned thereto in SECTION 13.10(D).
"REIMBURSEMENT OBLIGATION" means the obligation of the Borrower to
reimburse the Issuing Lender pursuant to SECTION 3.5 for amounts drawn under
Letters of Credit.
"REQUIRED LENDERS" means, at any date, any combination of Lenders whose
Commitments aggregate at least fifty-one percent (51%) of the Aggregate
Commitment or, if the Credit Facilities have been terminated pursuant to the
terms hereof, any combination of Lenders holding at least fifty-one percent
(51%) of the aggregate Extensions of Credit; PROVIDED that "Required Lenders"
shall be comprised of at least three (3) Lenders.
"RESERVE ITEMS" has the meaning set forth in SECTION 2.1(B).
"RESPONSIBLE OFFICER" means, with respect to any Person, any executive
officer or Financial Officer of such Person and any other officer or similar
official thereof responsible for the administration of the obligations of such
Person in respect of this Agreement.
"RESTRICTED PAYMENT" means with respect to the Borrower and each of its
Subsidiaries (the "COVERED PERSONS"), (a) in the case of any Covered Person that
is a partnership, (i) any payment or other distribution, direct or indirect, in
respect of any partnership interest in such Covered Person, except a
distribution payable solely in additional partnership interests in such Covered
Person, and (ii) any payment, direct or indirect, by such Covered Person on
account of the redemption, retirement, purchase or other acquisition of any
partnership interest in such or any other Covered Person, except to the extent
that such payment consists of additional partnership interests in such Covered
Person; (b) in the case of any Covered Person that is a corporation, (i) any
dividend or other distribution, direct or indirect on account of any shares of
any class of stock of such Covered Person then outstanding, except a dividend
payable solely in shares of stock of such Covered Person, and (ii) any payment,
direct or indirect, by such Covered Person on account of the redemption,
retirement, purchase or other acquisition of any shares of any class of stock of
such Covered Person then outstanding, or of any warrants, rights or options to
acquire any such shares, except to the extent that such payment consists of
shares of Capital Stock of such Covered Person; and (c) in the case of any other
Covered Person, any payment analogous to the prepayments referred to in clauses
(a) and (b) above.
"REVOLVING CREDIT COMMITMENT" means (a) as to any Lender, the obligation of
such Lender to make Revolving Credit Loans to the Borrower hereunder in an
aggregate principal amount at any time outstanding not to exceed the amount so
designated opposite such Lender's name on SCHEDULE 1.1(A) hereto, as the same
may be reduced or modified at any time or from time to time pursuant to the
terms hereof and (b) as to all Lenders, the aggregate commitment of all Lenders
to make Revolving Credit Loans, as such amount may be increased or reduced at
any time or from time to time pursuant to the terms hereof. The Revolving Credit
Commitment of all Lenders on the Closing Date shall be Seventy-Five Million
Dollars ($75,000,000).
"REVOLVING CREDIT COMMITMENT PERCENTAGE" means, as to any Lender at any
time, the ratio of (a) the amount of the Revolving Credit Commitment of such
Lender to (b) the Revolving Credit Commitment of all Lenders.
"REVOLVING CREDIT FACILITY" means the revolving credit facility established
pursuant to SECTION 2.1(A).
"REVOLVING CREDIT LOAN" means any of the revolving credit loans made by the
Lenders to the Borrower pursuant to SECTION 2.1(A) and all such loans
collectively as the context requires.
"REVOLVING CREDIT NOTES" means the collective reference to the Revolving
Credit Notes made by the Borrower payable to the order of each Lender,
substantially in the form of EXHIBIT A-1 hereto, evidencing the Revolving Credit
Facility, and any amendments and modifications thereto, any substitutes
therefor, and any replacements, restatements, renewals or extension thereof, in
whole or in part; "REVOLVING CREDIT NOTE" means any of such Revolving Credit
Notes.
"SCANA LITIGATION" means the lawsuit captioned Heritage Propane Partners,
L.P. v. SCANA Corporation et al., Civil Action 01-CP-40-3262, filed in the Court
of Common Pleas for Richland County, South Carolina, and all claims and
counterclaims related thereto.
"SENIOR NOTE AGREEMENT" means, collectively, the note agreements pursuant
to which the Senior Notes were issued, dated as of February 28, 1996, as amended
by the Amendment No. 1 thereto, dated May 13, 1998, and the Amendment No. 2
thereto, dated March 29, 1999, Amendment No. 3 thereto, dated December 6, 2000,
Amendment No. 4 thereto, dated March 31, 2002, Amendment No. 5 thereto, dated
November 20, 2002, and as amended from time to time in accordance with SECTION
10.9.
"SENIOR NOTE DEFAULT" means any payment default or any other event or
condition with respect to the Senior Notes or any Refinancing Note the effect of
which is to cause, or permit the holder or holders of the Senior Notes or any
Refinancing Note or a trustee under any Refinancing Note Agreement (with or
without the giving of notice, the lapse of time or both) to cause the Senior
Notes or any Refinancing Note to become due prior to its stated maturity.
"SENIOR NOTE PAYMENTS" means the required annual principal payments on the
Senior Notes set forth in and pursuant to the terms of Section 4A of the Senior
Note Agreement.
"SENIOR NOTES" means the 7.54% Senior Notes, due 2011, of the Borrower.
"SOLVENT" means, as to the Borrower and its Subsidiaries on a particular
date, that any such Person (a) has capital sufficient to carry on its business
and transactions and all business and transactions in which it is about to
engage and is able to pay its debts as they mature, (b) owns property having a
value, both at fair valuation and at present fair saleable value, greater than
the amount required to pay its probable liabilities (including contingencies),
and (c) does not believe that it will incur debts or liabilities beyond its
ability to pay such debts or liabilities as they mature.
"SUBSIDIARY" means as to any Person, any corporation, partnership, limited
liability company or other entity of which more than fifty percent (50%) of the
outstanding capital stock or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other managers of such
corporation, partnership, limited liability company or other entity is at the
time, directly or indirectly, owned by or the management is otherwise controlled
by such Person (irrespective of whether, at the time, capital stock or other
ownership interests of any other class or classes of such corporation,
partnership, limited liability company or other entity shall have or might have
voting power by reason of the happening of any contingency). Unless otherwise
qualified references to "SUBSIDIARY" or "SUBSIDIARIES" herein shall refer to
those of the Borrower.
"SUPPLEMENTAL LENDER" shall have the meaning assigned thereto in SECTION
2.5.
"SWAP AGREEMENT" means any (a) Hedging Agreement, (b) forward rate
agreement, (c) forward foreign exchange agreement, (d) currency swap agreement,
(e) cross-currency rate swap agreement, (f) currency option agreement or (g)
other agreement or arrangement, in each case, designed to alter the risks of any
Person arising from fluctuations in interest rates or currency values (including
such agreements entered into to swap obligations with a fixed rate of interest
to obligations with a floating rate of interest) and any confirming letter
executed pursuant to such agreement, all as amended, restated, supplemented or
otherwise modified from time to time.
"SWAP OBLIGATIONS" means all payment and other existing and future
obligations owing by the Borrower to any Lender or the Administrative Agent
under any Swap Agreement to which a Lender or the Administrative Agent is a
party which is permitted under this Agreement.
"SWINGLINE COMMITMENT" means Seven Million Five Hundred Thousand Dollars
($7,500,000).
"SWINGLINE FACILITY" means the swingline facility established pursuant to
SECTION 2.2.
"SWINGLINE LENDER" means Wachovia in its capacity as swingline lender
hereunder.
"SWINGLINE LOAN" means the swingline loans made by the Swingline Lender to
the Borrower pursuant to SECTION 2.2, and all such loans collectively as the
context requires.
"SWINGLINE NOTE" means the Swingline Note made by the Borrower payable to
the order of the Swingline Lender, substantially in the form of EXHIBIT A-3
hereto, evidencing the Swingline Loans, and any amendments, supplements and
modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extension thereof, in whole or in part.
"SWINGLINE RATE" means the interest rate applicable to Swingline Loans, as
agreed upon from time to time by the Borrower and the Administrative Agent
pursuant to a written side letter agreement.
"SWINGLINE TERMINATION DATE" means the earlier to occur of (a) the
resignation of Wachovia as Administrative Agent in accordance with SECTION 12.9
and (b) the Termination Date.
"TAXES" has the meaning assigned thereto in SECTION 4.17(A).
"TERMINATION DATE" has the meaning assigned thereto in SECTION 4.6.
"TOTAL INDEBTEDNESS" means, at any time, all Indebtedness of the Borrower
and its Subsidiaries at such time (other than Indebtedness described under
clauses (i) and (j) of the definition of "Indebtedness"), determined on a
Consolidated basis in accordance with GAAP.
"UNIFORM CUSTOMS" means the Uniform Customs and Practice for Documentary
Credits (1994 Revision), effective January, 1994, International Chamber of
Commerce Publication No. 500.
"UCC" means the Uniform Commercial Code as in effect in the State of New
York, as amended or modified from time to time.
"UNITED STATES" means the United States of America.
"WACHOVIA" means Wachovia Bank, National Association, a national banking
association, and its successors.
"WACHOVIA LETTER OF CREDIT" means the letter of credit identified on
SCHEDULE 1.1(B) hereto.
"WHOLLY-OWNED" means, with respect to a Subsidiary, a Subsidiary all of the
shares of Capital Stock or other ownership interests of which are, directly or
indirectly, owned or controlled by the Borrower and/or one or more of its
Wholly-Owned Subsidiaries.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2 GENERAL. Unless otherwise specified, a reference in this
Agreement to a particular section, subsection, Schedule or Exhibit is a
reference to that section, subsection, Schedule or Exhibit of this Agreement.
Wherever from the context it appears appropriate, each term stated in either the
singular or plural shall include the singular and plural, and pronouns stated in
the masculine, feminine or neuter gender shall include the masculine, the
feminine and the neuter. Any reference herein to "Charlotte time" shall refer to
the applicable time of day in Charlotte, North Carolina. The term "including"
when used in any Loan Document means "including, without limitation," except
where used in the computation of time periods.
SECTION 1.3 OTHER DEFINITIONS AND PROVISIONS.
(a) USE OF CAPITALIZED TERMS. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(b) MISCELLANEOUS. The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
ARTICLE II
THE CREDIT FACILITIES
SECTION 2.1 REVOLVING CREDIT LOANS.
(a) Subject to the terms and conditions (including without limitation
SECTION 4.4) of this Agreement, and in reliance upon the representations and
warranties set forth herein, each Lender severally agrees to make Revolving
Credit Loans to the Borrower from time to time from the Closing Date to, but not
including, the Termination Date as requested by the Borrower in accordance with
the terms of SECTION 4.1; PROVIDED, that (i) the aggregate principal amount of
all outstanding Revolving Credit Loans (after giving effect to any amount
requested) shall not exceed the Revolving Credit Commitment LESS the sum of (A)
all outstanding Swingline Loans and L/C Obligations and (B) the Blocked Portion
as of such date and (ii) the principal amount of outstanding Revolving Credit
Loans from any Lender to the Borrower shall not at any time exceed such Lender's
Revolving Credit Commitment LESS such Lender's Revolving Credit Commitment
Percentage of L/C Obligations and outstanding Swingline Loans. Each Revolving
Credit Loan by a Lender shall be in a principal amount equal to such Lender's
Revolving Credit Commitment Percentage of the aggregate principal amount of
Revolving Credit Loans requested on such occasion. Subject to the terms and
conditions hereof, the Borrower may borrow, repay and reborrow Revolving Credit
Loans hereunder until the Termination Date.
(b) BLOCKED PORTION OF REVOLVING CREDIT COMMITMENTS. The Borrower may from
time to time deliver a certificate of a Financial Officer of the Borrower to the
Administrative Agent designating a portion of the then-available Revolving
Credit Commitments as being unavailable except for the purpose of funding items
("RESERVE Items") specified in such certificate that would have been reserved
against pursuant to the definition of "Available Cash" but for the specification
of such amounts in such certificate. The aggregate amount of Revolving Credit
Commitments unavailable as a result of the delivery of such certificates at any
time shall be referred to as the "BLOCKED PORTION" in effect at such time. The
Blocked Portion shall be reduced from time to time upon receipt by the
Administrative Agent of a certificate of a Financial Officer of the Borrower
certifying as to (a) the discharge of any portion of any Reserve Item, (b) the
establishment of a cash reserve in respect of any portion of any Reserve Item,
(c) the determination by the Board of Supervisors of the Borrower that any
reserve contemplated by clause (b) of the definition of "Available Cash" may be
reduced because the amount of the original reserve is no longer necessary or
appropriate by reason of a change in the anticipated timing or amount of the
item reserved against or (d) the delivery of a Notice of Borrowing for a
Revolving Credit Loan to be drawn under the Blocked Portion the proceeds of
which shall be used solely for the purpose of discharging any Reserve Item, each
of which reductions shall be in an amount equal to the amount of such discharged
portion, new cash reserve, adjustment to reserves or Revolving Credit Loan, as
applicable. Notwithstanding any other provision of this Agreement, at no time
shall any Revolving Credit Loan be made or any certificate increasing the
Blocked Portion become effective if as a result of the making of such Revolving
Credit Loan or the effectiveness of such increase the aggregate principal amount
of Revolving Credit Loans outstanding at such time would exceed the difference
between the aggregate amount of the Revolving Credit Commitments in effect at
such time and the amount of the Blocked Portion in effect at such time.
SECTION 2.2 SWINGLINE LOANS.
(a) AVAILABILITY. Subject to the terms and conditions (including without
limitation SECTION 4.4) of this Agreement, the Swingline Lender agrees to make
Swingline Loans to the Borrower from time to time from the Closing Date through,
but not including, the Swingline Termination Date; PROVIDED, that the aggregate
principal amount of all outstanding Swingline Loans (after giving effect to any
amount requested), shall not exceed the lesser of (i) the Revolving Credit
Commitment LESS the sum of (A) all outstanding Revolving Credit Loans and the
L/C Obligations and (B) the Blocked Portion as of such date; and (ii) the
Swingline Commitment. Each Lender acknowledges that the aggregate principal
amount of all outstanding Swingline Loans made by the Swingline Lender, when
taken together with the aggregate principal amount of all outstanding Revolving
Credit Loans made by the Swingline Lender, may exceed the Swingline Lender's
Revolving Credit Commitment.
(b) REFUNDING.
(i) Swingline Loans shall be reimbursed fully by the Lenders on demand
by the Swingline Lender. Such reimbursements shall be made by the Lenders
in accordance with their respective Revolving Credit Commitment Percentages
and shall thereafter be reflected as Revolving Credit Loans of the Lenders
on the books and records of the Administrative Agent; PROVIDED that no
Lender shall be required to reimburse any Swingline Loan if, after giving
effect to such reimbursement, the aggregate principal amount of such
Lender's Revolving Credit Loans outstanding would exceed such Lender's
Revolving Credit Commitment. Each Lender shall fund its respective
Revolving Credit Commitment Percentage of Revolving Credit Loans as
required to repay Swingline Loans outstanding to the Swingline Lender upon
demand by the Swingline Lender but in no event later than 2:00 p.m.
(Charlotte time) on the next succeeding Business Day after such demand is
made. No Lender's obligation to fund its respective Revolving Credit
Commitment Percentage of a Swingline Loan shall be affected by any other
Lender's failure to fund its Revolving Credit Commitment Percentage of a
Swingline Loan, nor shall any Lender's Revolving Credit Commitment
Percentage be increased as a result of any such failure of any other Lender
to fund its Revolving Credit Commitment Percentage of a Swingline Loan.
(ii) The Borrower shall pay to the Swingline Lender on demand the
amount of such Swingline Loans to the extent amounts received from the
Lenders are not sufficient to repay in full the outstanding Swingline Loans
requested or required to be refunded. In addition, the Borrower hereby
authorizes the Administrative Agent to charge any account maintained by the
Borrower with the Swingline Lender (up to the amount available therein) in
order to immediately pay the Swingline Lender the amount of such Swingline
Loans to the extent amounts received from the Lenders are not sufficient to
repay in full the outstanding Swingline Loans requested or required to be
refunded. If any portion of any such amount paid to the Swingline Lender
shall be recovered by or on behalf of the Borrower from the Swingline
Lender in bankruptcy or otherwise, the loss of the amount so recovered
shall be ratably shared among all the Lenders in accordance with their
respective Revolving Credit Commitment Percentages (unless the amounts so
recovered by or on behalf of the Borrower pertain to a Swingline Loan
extended after the occurrence and during the continuance of an Event of
Default of which the Administrative Agent has received notice in the manner
required pursuant to SECTION 12.5 and which such Event of Default has not
been waived by the Required Lenders or the Lenders, as applicable).
(iii) Each Lender acknowledges and agrees that its obligation to
refund Swingline Loans in accordance with the terms of this SECTION 2.2 is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, non-satisfaction of the
conditions set forth in Article V. Further, each Lender agrees and
acknowledges that if prior to the refunding of any outstanding Swingline
Loans pursuant to this SECTION 2.2, one of the events described in SECTION
11.1(I) or (J) shall have occurred, each Lender will, on the date the
applicable Revolving Credit Loan would have been made, purchase an
undivided participating interest in the Swingline Loan to be refunded in an
amount equal to its Revolving Credit Commitment Percentage of the aggregate
amount of such Swingline Loan. Each Lender will immediately transfer to the
Swingline Lender, in immediately available funds, the amount of its
participation and upon receipt thereof the Swingline Lender will deliver to
such Lender a certificate evidencing such participation dated the date of
receipt of such funds and for such amount. Whenever, at any time after the
Swingline Lender has received from any Lender such Lender's participating
interest in a Swingline Loan, the Swingline Lender receives any payment on
account thereof, the Swingline Lender will distribute to such Lender its
participating interest in such amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such
Lender's participating interest was outstanding and funded).
SECTION 2.3 [Intentionally Omitted]
SECTION 2.4 ACQUISITION LOANS. Subject to the terms and conditions
(including without limitation SECTION 4.4) of this Agreement, and in reliance
upon the representations and warranties set forth herein, each Lender severally
agrees to make Acquisition Loans to the Borrower from time to time from the
Closing Date to, but not including, the Termination Date as requested by the
Borrower in accordance with the terms of SECTION 4.1(A); PROVIDED, that (a) the
aggregate principal amount of all outstanding Acquisition Loans (after giving
effect to any amount requested) shall not exceed the Acquisition Commitment and
(b) the principal amount of outstanding Acquisition Loans from any Lender to the
Borrower shall not at any time exceed such Lender's Acquisition Commitment. Each
Acquisition Loan by a Lender shall be in a principal amount equal to such
Lender's Acquisition Commitment Percentage of the aggregate principal amount of
Acquisition Loans requested or required on such occasion. Subject to the terms
and conditions hereof, the Borrower may borrow, repay and reborrow Acquisition
Loans hereunder until the Termination Date.
SECTION 2.5 INCREASE OF ACQUISITION COMMITMENT. (a) So long as no Default
or Event of Default shall have occurred and be continuing or be created thereby,
the Borrower shall have the right from time to time, but, unless the
Administrative Agent otherwise agrees, not more than two times in any year, to
request upon not less than thirty (30) days prior written notice to the
Administrative Agent an increase in the Acquisition Commitment; PROVIDED that
each such requested increase shall be in a minimum principal amount of
$5,000,000 and in no event shall the Acquisition Commitment be increased to an
amount greater than $100,000,000. The Administrative Agent shall promptly notify
the Lenders of any such request by the Borrower. Within fifteen (15) Business
Days after such request, each Lender shall notify the Administrative Agent,
whether, in its sole discretion, it is willing to commit to increase its
Acquisition Commitment and the additional amount it is willing to commit (a
"PROPOSED INCREASED COMMITMENT"). The Administrative Agent shall promptly notify
the Borrower and each other Lender of each Lender's decision and shall allocate
the additional Acquisition Commitments among the Lenders based on the ratio of
each Lender's Proposed Increased Commitment, if any, to the aggregate amount of
all Proposed Increased Commitments. Any Lender that does not so notify the
Administrative Agent within such period shall be deemed to have declined to any
such requested additional Acquisition Commitments. If the Lenders are not
willing to commit to the requested additional Acquisition Commitments in the
amount requested by the Borrower, then the Borrower may accept such reduced
amount or, with notice thereof to the other Lenders, seek at its expense
Acquisition Commitments from one or more financial institutions that qualify
under this Credit Agreement as Eligible Assignees (each a "SUPPLEMENTAL LENDER")
to provide the remainder of the requested additional Acquisition Commitment. Any
such Supplemental Lender must be approved by the Administrative Agent in its
reasonable discretion and provide its Acquisition Commitment within forty-five
(45) Business Days after the Borrower's original request.
(b) Any increase in the Acquisition Commitment pursuant to this SECTION 2.5
shall be accomplished as follows: (i) the Credit Agreement shall be supplemented
(but without any requirement that the consent of the Lenders be obtained
pursuant to SECTION 13.11) by the delivery to the Administrative Agent of a
Lender Addition and Acknowledgement Agreement executed by the Borrower, the
Lenders who are increasing their Acquisition Commitments (if any) and the
Supplemental Lenders (if any), (ii) the Administrative Agent will prepare an
updated SCHEDULE 1.1(A) to be attached to the Lender Addition and Acknowledgment
Agreement as an exhibit, and which SCHEDULE 1.1(A) shall reflect an adjustment
to each Lender's Acquisition Commitment and Revolving Credit Commitment based on
its aggregate Commitment Percentage after giving effect to the total increase to
the Acquisition Commitment (each Lender hereby agrees that its Acquisition
Commitment and its Revolving Credit Commitment shall be calculated on such
SCHEDULE 1.1(A) in an amount equal to the new total Acquisition Commitment TIMES
its adjusted aggregate Commitment Percentage and the existing total Revolving
Credit Commitment TIMES its adjusted aggregate Commitment Percentage), (iii) the
outstanding Acquisition Loans and Revolving Credit Loans will be reallocated on
the effective date of such Lender Addition and Acknowledgement Agreement among
the Lenders in accordance with the instructions of the Administrative Agent in
order to reflect such revised SCHEDULE 1.1(A) (and the Lenders agree to make all
payments and adjustments and execute any master Assignment and Acceptance
necessary to effect such reallocation and the Borrower shall pay any and all
costs of the Lenders incurred in connection therewith, including any amounts
required pursuant to SECTION 4.15 in connection with such reallocation as if
such reallocation were a repayment) and (iv) the Borrower will deliver new
Acquisition Notes and Revolving Credit Notes to the Lenders reflecting the
revised Acquisition Commitment and Revolving Credit Commitment amount of each
Lender and, if applicable to the Supplemental Lender or Lenders reflecting the
Acquisition Commitment and Revolving Credit Commitment of such Supplemental
Lender or Lenders.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C COMMITMENT. Subject to the terms and conditions (including
without limitation SECTION 4.4) of this Agreement, the Issuing Lender, in
reliance on the agreements of the other Lenders set forth in SECTION 3.4(A),
agrees to issue standby letters of credit ("LETTERS OF CREDIT") for the account
of the Borrower on any Business Day from the Closing Date to, but not including,
the Termination Date in such form as may be approved from time to time by the
Issuing Lender; PROVIDED, that the Issuing Lender shall have no obligation to
issue any Letter of Credit if, after giving effect to such issuance, (a) the L/C
Obligations would exceed the L/C Commitment or (b) the aggregate principal
amount of outstanding Revolving Credit Loans, PLUS the aggregate principal
amount of outstanding Swingline Loans, PLUS the aggregate amount of L/C
Obligations would exceed the Revolving Credit Commitment LESS the Blocked
Portion. Each Letter of Credit shall (i) be denominated in Dollars in a minimum
amount of $1,000,000, (ii) be a standby letter of credit issued to support
obligations of the Borrower or any of its Subsidiaries, contingent or otherwise,
incurred in the ordinary course of business, (iii) have a term of no more than
one year, (iv) expire on a date not later than the Termination Date and that is
otherwise satisfactory to the Issuing Lender and (v) be subject to the Uniform
Customs and/or ISP98, as set forth in the Application or as determined by the
Issuing Lender and, to the extent not inconsistent therewith, the laws of the
State of New York. The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed by,
any Applicable Law. References herein to "issue" and derivations thereof with
respect to Letters of Credit shall also include extensions or modifications of
any existing Letters of Credit, unless the context otherwise requires. The
Wachovia Letter of Credit shall be deemed to be a Letter of Credit issued and
outstanding under this Agreement on and after the Closing Date.
SECTION 3.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. The Borrower may
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at the Administrative Agent's Office an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
shall process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall, subject to SECTION 3.1 and Article V, promptly
issue the Letter of Credit requested thereby (but in no event shall the Issuing
Lender be required to issue any Letter of Credit earlier than three (3) Business
Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Lender and the Borrower. The Issuing
Lender shall promptly furnish to the Borrower a copy of such Letter of Credit
and promptly notify each Lender of the issuance and upon request by any Lender,
furnish to such Lender a copy of such Letter of Credit and the amount of such
Lender's L/C Participation therein.
SECTION 3.3 COMMISSIONS AND OTHER CHARGES.
(a) The Borrower shall pay to the Administrative Agent, for the account of
the Issuing Lender and the L/C Participants, a letter of credit commission with
respect to each Letter of Credit in an amount equal to the product of (i) the
average daily maximum amount available to be drawn during the relevant quarter
under such Letter of Credit and (ii) the Applicable Margin for LIBOR Loans
(determined on a per annum basis). Such commission shall be payable quarterly in
arrears on the last Business Day of each calendar quarter and on the Termination
Date. The Administrative Agent shall, promptly following its receipt thereof,
distribute to the Issuing Lender and the L/C Participants all commissions
received pursuant to this SECTION 3.3(A) in accordance with their respective
Revolving Credit Commitment Percentages.
(b) In addition to the foregoing commission, the Borrower shall pay to the
Administrative Agent, for the account of the Issuing Lender, an issuance fee
with respect to each Letter of Credit in an amount equal to the product of (i)
the face amount of such Letter of Credit and (ii) one eighth of one percent
(0.125%). Such issuance fee shall be payable on the date of issuance of each
Letter of Credit and shall be non-refundable.
(c) In addition to the foregoing fees and commissions, the Borrower shall
pay or reimburse the Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by the Issuing Lender in issuing, effecting
payment under, amending or otherwise administering any Letter of Credit.
SECTION 3.4 L/C PARTICIPATIONS.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Revolving Credit
Commitment Percentage in the Issuing Lender's obligations and rights under and
in respect of each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower through a Revolving Credit Loan or otherwise
in accordance with the terms of this Agreement, such L/C Participant shall pay
to the Issuing Lender upon demand at the Issuing Lender's address for notices
specified herein an amount equal to such L/C Participant's Revolving Credit
Commitment Percentage of the amount of such draft, or any part thereof, which is
not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to SECTION 3.4(A) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify each L/C Participant of the amount
and due date of such required payment and such L/C Participant shall pay to the
Issuing Lender the amount specified on the applicable due date. If any such
amount is paid to the Issuing Lender after the date such payment is due, such
L/C Participant shall pay to the Issuing Lender on demand, in addition to such
amount, the product of (i) such amount, TIMES (ii) the daily average Federal
Funds Rate as determined by the Administrative Agent during the period from and
including the date such payment is due to the date on which such payment is
immediately available to the Issuing Lender, TIMES (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. A certificate of the Issuing Lender with respect to
any amounts owing under this SECTION 3.4(B) shall be conclusive in the absence
of manifest error. With respect to payment to the Issuing Lender of the
unreimbursed amounts described in this SECTION 3.4(B), if the L/C Participants
receive notice that any such payment is due (A) prior to 1:00 p.m. (Charlotte
time) on any Business Day, such payment shall be due that Business Day, and (B)
after 1:00 p.m. (Charlotte time) on any Business Day, such payment shall be due
on the following Business Day.
(c) Whenever, at any time after the Issuing Lender has made payment under
any Letter of Credit and has received from any L/C Participant its Revolving
Credit Commitment Percentage of such payment in accordance with this SECTION
3.4, the Issuing Lender receives any payment related to such Letter of Credit
(whether directly from the Borrower or otherwise, or any payment of interest on
account thereof, the Issuing Lender will distribute to such L/C Participant its
PRO RATA share thereof; PROVIDED, that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing
Lender, such L/C Participant shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.
SECTION 3.5 REIMBURSEMENT OBLIGATION OF THE BORROWER. In the event of any
drawing under any Letter of Credit, the Borrower agrees to reimburse (either
with the proceeds of a Revolving Credit Loan as provided for in this SECTION 3.5
or with funds from other sources), in same day funds, the Issuing Lender on each
date on which the Issuing Lender notifies the Borrower of the date and amount of
a draft paid under any Letter of Credit for the amount of (a) such draft so paid
and (b) any amounts referred to in SECTION 3.3(C) incurred by the Issuing Lender
in connection with such payment. Unless the Borrower shall immediately notify
the Issuing Lender that the Borrower intends to reimburse the Issuing Lender for
such drawing from other sources or funds, the Borrower shall be deemed to have
timely given a Notice of Borrowing to the Administrative Agent requesting that
the Lenders make a Revolving Credit Loan bearing interest at the Base Rate on
such date in the amount of (a) such draft so paid and (b) any amounts referred
to in SECTION 3.3(C) incurred by the Issuing Lender in connection with such
payment, and the Lenders shall make a Revolving Credit Loan bearing interest at
the Base Rate in such amount, the proceeds of which shall be applied to
reimburse the Issuing Lender for the amount of the related drawing and costs and
expenses. Each Lender acknowledges and agrees that its obligation to fund a
Revolving Credit Loan in accordance with this SECTION 3.5 to reimburse the
Issuing Lender for any draft paid under a Letter of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, non-satisfaction of the conditions set forth in
SECTION 4.1(A) or Article V. If the Borrower has elected to pay the amount of
such drawing with funds from other sources and shall fail to reimburse the
Issuing Lender as provided above, the unreimbursed amount of such drawing shall
bear interest in the rate which would be payable on any outstanding Base Rate
Loans which were then overdue from the date such amounts become payable (whether
at stated maturity, by acceleration or otherwise) until payment in full.
SECTION 3.6 OBLIGATIONS ABSOLUTE. The Borrower's obligations under this
Article III (including without limitation the Reimbursement Obligation) shall be
absolute and unconditional under any and all circumstances and irrespective of
any set-off, counterclaim or defense to payment which the Borrower may have or
have had against the Issuing Lender or any beneficiary of a Letter of Credit or
any other Person. The Borrower also agrees that the Issuing Lender and the L/C
Participants shall not be responsible for, and the Borrower's Reimbursement
Obligation under SECTION 3.5 shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even though
such documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of the Borrower against any beneficiary of such Letter of
Credit or any such transferee. The Issuing Lender shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions caused by the Issuing Lender's gross
negligence or willful misconduct. The Borrower agrees that any action taken or
omitted by the Issuing Lender under or in connection with any Letter of Credit
or the related drafts or documents, if done in the absence of gross negligence
or willful misconduct and in accordance with the standards of care specified in
ISP 98 or the Uniform Customs, as the case may be, and, to the extent not
inconsistent therewith, the UCC, shall be binding on the Borrower and shall not
result in any liability of the Issuing Lender or any L/C Participant to the
Borrower.
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1 PROCEDURE FOR ADVANCES OF LOANS.
(a) REQUESTS FOR BORROWING. The Borrower shall give the Administrative
Agent irrevocable prior written notice in the form attached hereto as EXHIBIT B
(a "NOTICE OF BORROWING") not later than 11:00 a.m. (Charlotte time) (i) on the
same Business Day as each Base Rate Loan and each Swingline Loan and (ii) at
least three (3) Business Days before each LIBOR Rate Loan, of its intention to
borrow, specifying (A) the date of such borrowing, which shall be a Business
Day, (B) the amount of such borrowing, which shall be (x) with respect to LIBOR
Rate Loans and Base Rate Loans, in an aggregate principal amount of $3,000,000
or a whole multiple of $500,000 in excess thereof, and (y) with respect to
Swingline Loans in an aggregate principal amount of $500,000 or a whole multiple
of $250,000 in excess thereof, (C) whether such Loan is to be a Revolving Credit
Loan, Swingline Loan or Acquisition Loan, (D) in the case of a Revolving Credit
Loan or Acquisition Loan whether the Loans are to be LIBOR Rate Loans or Base
Rate Loans, and (E) in the case of a LIBOR Rate Loan, the duration of the
Interest Period applicable thereto. A Notice of Borrowing received after 11:00
a.m. (Charlotte time) shall be deemed received on the next Business Day. The
Administrative Agent shall promptly notify the Lenders of each Notice of
Borrowing.
(b) DISBURSEMENT OF LOANS. Not later than 2:00 p.m. (Charlotte time) on the
proposed borrowing date, (i) each Lender will make available to the
Administrative Agent, for the account of the Borrower, at the office of the
Administrative Agent in funds immediately available to the Administrative Agent,
as applicable, (A) such Lender's Revolving Credit Commitment Percentage of the
Revolving Credit Loans to be made on such borrowing date, and (B) such Lender's
Acquisition Commitment Percentage of the Acquisition Loan to be made on such
borrowing date and (ii) the Swingline Lender will make available to the
Administrative Agent, for the account of the Borrower, at the office of the
Administrative Agent in funds immediately available to the Administrative Agent,
the Swingline Loans to be made to the Borrower on such borrowing date. The
Borrower hereby irrevocably authorizes the Administrative Agent to disburse the
proceeds of each borrowing requested pursuant to this SECTION 4.1 in immediately
available funds by crediting or wiring such proceeds to the deposit account of
the Borrower identified in the most recent notice substantially in the form of
EXHIBIT C hereto (a "NOTICE OF ACCOUNT DESIGNATION") delivered by the Borrower
to the Administrative Agent or may be otherwise agreed upon by the Borrower and
the Administrative Agent from time to time. Subject to SECTION 4.13, the
Administrative Agent shall not be obligated to disburse the portion of the
proceeds of any Revolving Credit Loan or Acquisition Loan requested pursuant to
this SECTION 4.1 to the extent that any Lender has not made available to the
Administrative Agent its Revolving Credit Commitment Percentage or Acquisition
Commitment Percentage, as the case may be, of such Loan. Revolving Credit Loans
to be made for the purpose of refunding Swingline Loans shall be made by the
Lenders as provided in SECTION 2.2(B).
SECTION 4.2 REPAYMENT OF LOANS.
(a) REPAYMENT ON TERMINATION DATE. On the Termination Date, the Borrower
shall repay the outstanding principal amount of (i) all Revolving Credit Loans
and Acquisition Loans in full, and (ii) to the extent the Swingline Termination
Date has not occurred, all Swingline Loans together, in each case, with all
accrued but unpaid interest thereon.
(b) MANDATORY REPAYMENT OF REVOLVING CREDIT LOANS AND ACQUISITION LOANS. If
at any time, as the case may be, (i) the outstanding principal amount of all
Revolving Credit Loans PLUS the sum of (A) all outstanding Swingline Loans and
L/C Obligations and (B) the Blocked Portion as of such date exceeds the
Revolving Credit Commitment, the Borrower shall repay immediately upon notice
from the Administrative Agent, by payment to the Administrative Agent for the
account of the Lenders, the aggregate outstanding Revolving Credit Loans,
Swingline Loans and L/C Obligations in an amount equal to such excess with each
such repayment applied FIRST to the principal amount of outstanding Swingline
Loans, SECOND to the principal amount of outstanding Revolving Credit Loans and
THIRD, with respect to any Letters of Credit then outstanding, a payment of cash
collateral into a cash collateral account opened by the Borrower with the
Administrative Agent, for the benefit of the Lenders (such cash collateral to be
applied in accordance with SECTION 11.2(B)), and (ii) the outstanding principal
amount of all Acquisition Loans exceeds the Acquisition Commitment, the Borrower
shall repay immediately upon notice from the Administrative Agent, by payment to
the Administrative Agent for the account of the Lenders, Acquisition Loans in an
amount equal to such excess. Each such repayment shall be accompanied by any
amount required to be paid pursuant to SECTION 4.15.
(c) OPTIONAL REPAYMENTS. The Borrower may at any time and from time to time
repay the Loans, in whole or in part, upon at least three (3) Business Days'
irrevocable notice to the Administrative Agent with respect to LIBOR Rate Loans
and one (1) Business Day irrevocable notice with respect to Base Rate Loans and
Swingline Loans, in the form attached hereto as EXHIBIT D (a "NOTICE OF
PREPAYMENT") specifying the date and amount of repayment and whether the
repayment is of a Revolving Credit Loan or Acquisition Loan, LIBOR Rate Loans,
Base Rate Loans, Swingline Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of such notice,
the Administrative Agent shall promptly notify each Lender. If any such notice
is given, the amount specified in such notice shall be due and payable on the
date set forth in such notice. Partial repayments shall be in an aggregate
amount of $3,000,000 or a whole multiple of $500,000 in excess thereof with
respect to LIBOR Rate Loans and Base Rate Loans and $500,000 or a whole multiple
of $250,000 in excess thereof with respect to Swingline Loans. Each such
repayment shall be accompanied by any amount required to be paid pursuant to
SECTION 4.15.
(d) MANDATORY REPAYMENT OF ACQUISITION LOANS. The Borrower shall apply the
Lender's Portion of the Designated Net Proceeds and the Designated Net
Insurance/Condemnation Proceeds promptly upon receipt thereof by the Borrower or
any Subsidiary or upon the existence thereof, as applicable, to repay the
Acquisition Loans outstanding at the time of such receipt or existence.
(e) LIMITATION ON REPAYMENT OF LIBOR RATE LOANS. The Borrower may not repay
any LIBOR Rate Loan on any day other than on the last day of the Interest Period
applicable thereto unless such repayment is accompanied by any amount required
to be paid pursuant to SECTION 4.15.
SECTION 4.3 NOTES.
(a) REVOLVING CREDIT NOTES. Each Lender's Revolving Credit Loans and the
obligation of the Borrower to repay such Revolving Credit Loans shall be
evidenced by a separate Revolving Credit Note executed by the Borrower payable
to the order of such Lender representing the Borrower's obligation to pay such
Lender's Revolving Credit Commitment or, if less, the aggregate unpaid principal
amount of all Revolving Credit Loans made and to be made by such Lender to the
Borrower hereunder, plus interest and all other fees, charges and other amounts
due thereon. Each Revolving Credit Note shall be dated the date hereof and shall
bear interest on the unpaid principal amount thereof at the applicable interest
rate per annum specified in SECTION 4.7.
(b) ACQUISITION NOTES. Each Lender's Acquisition Loans and the obligation
of the Borrower to repay such Acquisition Loans shall be evidenced by an
Acquisition Note executed by the Borrower payable to the order of such Lender
representing the Borrowers obligation to pay such Lender's Acquisition Loan
Commitment or, if less, the aggregate unpaid principal amount of all Acquisition
Loans made and to be made by such Lender to the Borrower hereunder, plus
interest and all other fees, charges and other amounts due thereon. Each
Acquisition Note shall be dated the date hereof and shall bear interest on the
unpaid principal amount thereof at the applicable interest rate per annum
specified in SECTION 4.7.
(c) SWINGLINE NOTE. The Swingline Loans and the obligation of the Borrower
to repay such Swingline Loans shall be evidenced by the Swingline Note executed
by the Borrower payable to the order of the Swingline Lender representing the
Borrower's obligation to the Swingline Lender the aggregate unpaid principal
amount of all Swingline Loans made and to be made by the Swingline Lender to the
Borrower hereunder, plus interest and all other fees, charges and other amounts
due thereon. The Swingline Note shall be dated the date hereof and shall bear
interest on the unpaid principal amount thereof at the applicable Swingline
Rate.
SECTION 4.4 REPAYMENT; LIMITED INCURRENCE DURING CLEANDOWN PERIOD. During
each Fiscal Year, the Borrower shall select a Cleandown Period. On the first day
of each Cleandown Period, the Borrower shall repay the Extensions of Credit then
outstanding to the extent necessary to reduce the total amount of outstanding
Revolving Credit Loans, Swingline Loans and L/C Obligations to an amount not
exceeding $15,000,000. For the duration of each such Cleandown Period, the
Borrower shall not request, create or incur any Revolving Credit Loans,
Swingline Loans or Letters of Credit to the extent that the aggregate principal
amount of all outstanding Revolving Credit Loans, Swingline Loans and L/C
Obligations (after giving effect to any amount requested, created or incurred)
would exceed $15,000,000.
SECTION 4.5 PERMANENT REDUCTION OF THE REVOLVING CREDIT COMMITMENT AND THE
ACQUISITION Commitment.
(a) VOLUNTARY REDUCTION. The Borrower shall have the right at any time and
from time to time, upon at least three (3) Business Days prior irrevocable
written notice to the Administrative Agent, to permanently reduce, without
premium or penalty, (i) (A) at any time, the entire Acquisition Commitment or
the entire Revolving Credit Commitment or (ii) portions of the (A) Revolving
Credit Commitment or (B) the Acquisition Commitment, from time to time, in each
case, in an aggregate principal amount not less than $2,000,000 or any whole
multiple in excess thereof.
(b) MANDATORY PERMANENT REDUCTION OF ACQUISITION LOAN COMMITMENT. The
Acquisition Commitment shall be automatically and permanently reduced by the
Lenders' Portion of the Designated Net Proceeds and the Designated Net
Insurance/Condemnation Proceeds, promptly upon receipt thereof by the Borrower
or any Subsidiary or upon the existence thereof, as applicable, to the extent
that such amounts are not applied to repay Acquisition Loans pursuant to SECTION
4.2(D); PROVIDED, that no such reduction shall be required to the extent that
such reduction would reduce the Acquisition Commitment below an amount equal to
(i) $25,000,000 PLUS (ii) 50% of any increase in the Acquisition Commitment
pursuant to SECTION 2.5.
(c) REPAYMENT OF EXCESS LOANS. Each permanent reduction permitted or
required pursuant to this SECTION 4.5 and, as applicable, SECTION 4.6 shall be
(i) with respect to outstanding Revolving Credit Loans and L/C Obligations, be
accompanied by a payment of principal sufficient to reduce the aggregate
outstanding Revolving Credit Loans and L/C Obligations, of the Lenders after
such reduction to the Revolving Credit Commitment as so reduced and if the
Revolving Credit Commitment as so reduced is less than the aggregate amount of
all outstanding L/C Obligations, the Borrower shall be required to deposit in a
cash collateral account opened by the Administrative Agent an amount equal to
the aggregate then undrawn and unexpired amount of such L/C Obligations, and
(ii) with respect to Acquisition Loans be accompanied by a payment of principal
sufficient to reduce the aggregate outstanding Acquisition Loans of the Lenders
after such reduction to the Acquisition Commitment as so reduced. Any reduction
of the Revolving Credit Commitment or the Acquisition Commitment, as the case
may be, to zero shall be accompanied by payment of all outstanding Obligations
(and, with respect to a reduction of the Revolving Credit Commitment, the
furnishing of cash collateral satisfactory to the Administrative Agent for all
L/C Obligations) and shall result in the termination of the Revolving Credit
Commitment and the Revolving Credit Facility, and the Acquisition Commitment and
the Acquisition Facility, as the case may be. Such cash collateral shall be
applied in accordance with SECTION 11.2(B). If the reduction of the Revolving
Credit Commitment or the Acquisition Commitment, as applicable, requires the
repayment of any LIBOR Rate Loan, such repayment shall be accompanied by any
amount required to be paid pursuant to SECTION 4.15.
SECTION 4.6 TERMINATION OF CREDIT FACILITIES. The Credit Facilities shall
terminate and each of the Revolving Credit Commitment and the Acquisition
Commitment shall be automatically reduced to zero on the earliest of (a) May 31,
2006, (b) the date of termination by the Borrower pursuant to SECTION 4.5(A),
and (c) the date of termination by the Administrative Agent on behalf of the
Lenders pursuant to SECTION 11.2(A) (the "TERMINATION DATE").
SECTION 4.7 INTEREST.
(a) INTEREST RATE OPTIONS. Subject to the provisions of this SECTION 4.7,
at the election of the Borrower, the aggregate unpaid principal balance of (i)
each Revolving Credit Loan and each Acquisition Loan shall bear interest at the
Base Rate or the LIBOR Rate PLUS the Applicable Margin as set forth below, and
(ii) each Swingline Loan shall bear interest at the Swingline Rate. The Borrower
shall select the rate of interest and Interest Period, if any, applicable to any
LIBOR Rate Loan at the time a Notice of Borrowing is given pursuant to SECTION
4.1(A) or at the time a Notice of Conversion/Continuation is given pursuant to
SECTION 4.8. Each Loan or portion thereof bearing interest based on the Base
Rate shall be a "BASE RATE LOAN", and each Loan or portion thereof bearing
interest based on the LIBOR Rate shall be a "LIBOR RATE LOAN." Any Loan or any
portion thereof as to which the Borrower has not duly specified an interest rate
as provided herein shall be deemed a Base Rate Loan.
(b) INTEREST PERIODS. In connection with each LIBOR Rate Loan, the
Borrower, by giving notice at the times described in SECTION 4.7(A), shall elect
an interest period (each, an "INTEREST PERIOD") to be applicable to such Loan,
which Interest Period shall be a period of one (1), two (2), three (3), or six
(6) months; PROVIDED that:
(i) the Interest Period shall commence on the date of advance of or
conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall commence
on the date on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; PROVIDED, that if any Interest Period with respect
to a LIBOR Rate Loan would otherwise expire on a day that is not a Business
Day but is a day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next preceding
Business Day;
(iii) any Interest Period with respect to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the relevant
calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the Termination Date and
Interest Periods shall be selected by the Borrower so as to permit the
Borrower to make mandatory reductions of the Acquisition Commitment
pursuant to SECTION 4.4, without payment of any amounts pursuant to SECTION
4.15; and
(v) there shall be no more than ten (10) Interest Periods outstanding
at any time.
(c) APPLICABLE MARGIN. The Applicable Margin provided for in SECTION 4.7(A)
with respect to the Loans (the "APPLICABLE MARGIN") shall be determined by
reference to the Leverage Ratio as of the end of the fiscal quarter immediately
preceding the delivery of the applicable Officer's Compliance Certificate as
follows:
------- ----------------------------------------- -------------- ------------- --------------
LEVEL LEVERAGE RATIO LIBOR MARGIN BASE MARGIN FACILITY FEE
(%) (%) (%)
======= ========================================= ============== ============= ==============
I Greater than or equal to 4.50 to 1.00 2.00 1.00 0.500
------- ----------------------------------------- -------------- ------------- --------------
II Greater than or equal to 3.75 to 1.00, 1.75 0.75 0.500
but less than 4.50 to 1.00
------- ----------------------------------------- -------------- ------------- --------------
III Greater than or equal to 3.00 to 1.00, 1.50 0.50 0.375
but less than 3.75 to 1.00
------- ----------------------------------------- -------------- ------------- --------------
IV Less than 3.00 to 1.00 1.25 0.25 0.375
------- ----------------------------------------- -------------- ------------- --------------
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent on the third (3rd) Business Day after receipt by the
Administrative Agent of quarterly financial statements for the Borrower and its
Subsidiaries and the accompanying Officer's Compliance Certificate setting forth
the Leverage Ratio of the Borrower and its Subsidiaries as of the most recent
fiscal quarter end. Subject to SECTION 4.7(D), in the event the Borrower fails
to deliver such financial statements and certificate within the time required by
SECTION 7.2, the Applicable Margin shall be the highest Applicable Margin set
forth above until the delivery of such financial statements and certificate.
(d) DEFAULT RATE. Subject to SECTION 11.3, upon the occurrence and during
the continuance of an Event of Default, (i) the Borrower shall no longer have
the option to request LIBOR Rate Loans or Swingline Loans, (ii) all outstanding
LIBOR Rate Loans shall bear interest at a rate per annum two percent (2%) in
excess of the rate then applicable to LIBOR Rate Loans until the end of the
applicable Interest Period and thereafter at a rate equal to two percent (2%) in
excess of the rate then applicable to Base Rate Loans, (iii) all outstanding
Swingline Loans shall bear interest at a rate per annum equal to two percent
(2%) in excess of the rate then applicable to Swingline Loans and (iv) all
outstanding Base Rate Loans shall bear interest at a rate per annum equal to two
percent (2%) in excess of the rate then applicable to Base Rate Loans. Interest
shall continue to accrue on the Notes after the filing by or against the
Borrower of any petition seeking any relief in bankruptcy or under any act or
law pertaining to insolvency or debtor relief, whether state, federal or
foreign.
(e) INTEREST PAYMENT AND COMPUTATION. Interest on each Base Rate Loan shall
be payable in arrears on the last Business Day of each calendar quarter
commencing June 30, 2003; interest on each LIBOR Rate Loan shall be payable on
the last day of each Interest Period applicable thereto, and if such Interest
Period extends over three (3) months, at the end of each three (3) month
interval during such Interest Period. All interest rates, fees and commissions
provided hereunder shall be computed on the basis of a 360-day year and assessed
for the actual number of days elapsed.
(f) MAXIMUM RATE. In no contingency or event whatsoever shall the aggregate
of all amounts deemed interest hereunder or under any of the Notes charged or
collected pursuant to the terms of this Agreement or pursuant to any of the
Notes exceed the highest rate permissible under any Applicable Law which a court
of competent jurisdiction shall, in a final determination, deem applicable
hereto. In the event that such a court determines that the Lenders have charged
or received interest hereunder in excess of the highest applicable rate, the
rate in effect hereunder shall automatically be reduced to the maximum rate
permitted by Applicable Law and the Lenders shall at the Administrative Agent's
option promptly refund to the Borrower any interest received by Lenders in
excess of the maximum lawful rate or shall apply such excess to the principal
balance of the Obligations. It is the intent hereof that the Borrower not pay or
contract to pay, and that neither the Administrative Agent nor any Lender
receive or contract to receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may be paid by the Borrower under Applicable
Law.
SECTION 4.8 NOTICE AND MANNER OF CONVERSION OR CONTINUATION OF LOANS.
Provided that no Event of Default has occurred and is then continuing, the
Borrower shall have the option to (a) convert at any time all or any portion of
its outstanding Base Rate Loans in a principal amount equal to $3,000,000 or any
whole multiple of $500,000 in excess thereof into one or more LIBOR Rate Loans
or (b) upon the expiration of any Interest Period, (i) convert all or any part
of its outstanding LIBOR Rate Loans in a principal amount equal to $3,000,000 or
a whole multiple of $500,000 in excess thereof into Base Rate Loans or (ii)
continue such LIBOR Rate Loans as LIBOR Rate Loans. Whenever the Borrower
desires to convert or continue Loans as provided above, the Borrower shall give
the Administrative Agent irrevocable prior written notice in the form attached
as EXHIBIT E (a "NOTICE OF CONVERSION/ CONTINUATION") not later than 11:00 a.m.
(Charlotte time) three (3) Business Days before the day on which a proposed
conversion or continuation of such Loan is to be effective specifying (A) the
Loans to be converted or continued, and, in the case of any LIBOR Rate Loan to
be converted or continued, the last day of the Interest Period therefor, (B) the
effective date of such conversion or continuation (which shall be a Business
Day), (C) the principal amount of such Loans to be converted or continued, and
(D) the Interest Period to be applicable to such converted or continued LIBOR
Rate Loan. The Administrative Agent shall promptly notify the Lenders of such
Notice of Conversion/Continuation.
SECTION 4.9 FEES.
(a) FACILITY FEES. The Borrower shall pay to the Administrative Agent, for
the account of the Lenders, a non-refundable facility fee at a rate per annum
equal to the percentage set forth in SECTION 4.7(C) times the Aggregate
Commitment, regardless of usage. The facility fee shall be payable in arrears on
the last Business Day of each calendar quarter during the term of this Agreement
commencing June 30, 2003 and on the Termination Date. Such facility fee shall be
distributed by the Administrative Agent to the Lenders PRO RATA in accordance
with the Lenders' respective Commitment Percentages.
(b) ADMINISTRATIVE AGENT'S AND OTHER FEES. To compensate the Administrative
Agent for structuring and syndicating the Loans and for its obligations
hereunder, the Borrower agrees to pay to the Administrative Agent, for its
account, the fees set forth in the separate fee letter agreement executed by the
Borrower and the Administrative Agent dated March 17, 2003.
SECTION 4.10 MANNER OF PAYMENT. Each payment by the Borrower on account of
the principal of or interest on the Loans or of any fee, commission or other
amounts payable to the Lenders under this Agreement or any Note shall be made
not later than 1:00 p.m. (Charlotte time) on the date specified for payment
under this Agreement to the Administrative Agent at the Administrative Agent's
Office for the account of the Lenders (other than as set forth below) PRO RATA
in accordance with their respective applicable Commitment Percentages, in
Dollars, in immediately available funds and shall be made without any set-off,
counterclaim or deduction whatsoever. Any payment received after such time but
before 2:00 p.m. (Charlotte time) on such day shall be deemed a payment on such
date for the purposes of SECTION 11.1, but for all other purposes shall be
deemed to have been made on the next succeeding Business Day. Any payment
received after 2:00 p.m. (Charlotte time) shall be deemed to have been made on
the next succeeding Business Day for all purposes. Upon receipt by the
Administrative Agent of each such payment, the Administrative Agent shall
distribute to each Lender at its address for notices set forth herein its PRO
RATA share of such payment in accordance with such Lender's applicable
Commitment Percentage and shall wire advice of the amount of such credit to each
Lender. Each payment to the Administrative Agent of Administrative Agent's fees
or expenses shall be made for the account of the Administrative Agent and any
amount payable to any Lender under SECTIONS 4.14, 4.15, 4.16, 4.17 OR 13.2 shall
be paid to the Administrative Agent for the account of the applicable Lender.
Subject to SECTION 4.7(B)(II), if any payment under this Agreement or any Note
shall be specified to be made upon a day which is not a Business Day, it shall
be made on the next succeeding day which is a Business Day and such extension of
time shall in such case be included in computing any interest if payable along
with such payment.
SECTION 4.11 CREDITING OF PAYMENTS AND PROCEEDS. In the event that the
Borrower shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to SECTION 11.2, all payments received by the
Lenders upon the Notes and the other Obligations and all net proceeds from the
enforcement of the Obligations shall be applied first to all expenses then due
and payable by the Borrower hereunder, then to all indemnity obligations then
due and payable by the Borrower hereunder, then to all Administrative Agent's
fees then due and payable, then to all fees and commissions then due and
payable, then to accrued and unpaid interest on the Swingline Note to the
Swingline Lender, then to the unpaid principal amount outstanding under the
Swingline Note to the Swingline Lender, then to accrued and unpaid interest on
the Revolving Credit Notes, Acquisition Notes and the Reimbursement Obligations
(pro rata in accordance with all such amounts due), then to the principal amount
of the Revolving Credit Notes, the Acquisition Notes, the Reimbursement
Obligations and any Swap Obligations (including any termination payments and any
accrued and unpaid interest thereon) (pro rata in accordance with all such
amounts due) and then to the cash collateral account described in SECTION
11.2(B) to the extent of any L/C Obligations then outstanding, in that order.
SECTION 4.12 ADJUSTMENTS. If any Lender (a "BENEFITTED LENDER") shall at
any time receive any payment of all or part of the Obligations owing to it, or
interest thereon, or if any Lender shall at any time receive any collateral in
respect to the Obligations owing to it (whether voluntarily or involuntarily, by
set-off or otherwise) in a greater proportion than any such payment to and
collateral received by any other Lender, if any, in respect of the Obligations
owing to such other Lender, or interest thereon, such Benefitted Lender shall
purchase for cash from the other Lenders such portion of each such other
Lender's Extensions of Credit, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; PROVIDED, that if all
or any portion of such excess payment or benefits is thereafter recovered from
such Benefitted Lender, such purchase shall be rescinded, and the purchase price
and benefits returned to the extent of such recovery, but without interest. The
Borrower agrees that each Lender so purchasing a portion of another Lender's
Extensions of Credit may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
SECTION 4.13 NATURE OF OBLIGATIONS OF LENDERS REGARDING EXTENSIONS OF
CREDIT; ASSUMPTION BY THE ADMINISTRATIVE AGENT. The obligations of the Lenders
under this Agreement to make the Loans and issue or participate in Letters of
Credit are several and are not joint or joint and several. Unless the
Administrative Agent shall have received notice from a Lender prior to a
proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
accordance with SECTION 4.1(B) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to the product of
(a) the amount not made available by such Lender in accordance with the terms
hereof, TIMES (b) the daily average Federal Funds Rate during such period as
determined by the Administrative Agent, TIMES (c) a fraction the numerator of
which is the number of days that elapse from and including such borrowing date
to the date on which such amount not made available by such Lender in accordance
with the terms hereof shall have become immediately available to the
Administrative Agent and the denominator of which is 360. A certificate of the
Administrative Agent with respect to any amounts owing under this SECTION 4.13
shall be conclusive, absent manifest error. If such Lender's Commitment
Percentage of such borrowing is not made available to the Administrative Agent
by such Lender within three (3) Business Days of such borrowing date, the
Administrative Agent shall be entitled to recover such amount made available by
the Administrative Agent with interest thereon at the rate per annum applicable
to Base Rate Loans hereunder, on demand, from the Borrower. The failure of any
Lender to make available its Commitment Percentage of any Loan requested by the
Borrower shall not relieve it or any other Lender of its obligation, if any,
hereunder to make its Commitment Percentage of such Loan available on such
borrowing date, but no Lender shall be responsible for the failure of any other
Lender to make its Commitment Percentage of such Loan available on the borrowing
date.
SECTION 4.14 CHANGED CIRCUMSTANCES.
(a) CIRCUMSTANCES AFFECTING LIBOR RATE AVAILABILITY. If with respect to any
Interest Period the Administrative Agent or any Lender (after consultation with
Administrative Agent) shall determine that, by reason of circumstances affecting
the foreign exchange and interbank markets generally, deposits in eurodollars,
in the applicable amounts are not being quoted via Telerate Page 3750 or offered
to the Administrative Agent or such Lender for such Interest Period, then the
Administrative Agent shall forthwith give notice thereof to the Borrower.
Thereafter, until the Administrative Agent notifies the Borrower that such
circumstances no longer exist, the obligation of the Lenders to make LIBOR Rate
Loans and the right of the Borrower to convert any Loan to or continue any Loan
as a LIBOR Rate Loan shall be suspended, and the Borrower shall repay in full
(or cause to be repaid in full) the then outstanding principal amount of each
such LIBOR Rate Loans together with accrued interest thereon, on the last day of
the then current Interest Period applicable to such LIBOR Rate Loan or convert
the then outstanding principal amount of each such LIBOR Rate Loan to a Base
Rate Loan as of the last day of such Interest Period.
(b) LAWS AFFECTING LIBOR RATE AVAILABILITY. If, after the date hereof, the
introduction of, or any change in, any Applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any of their respective Lending
Offices) with any request or directive (whether or not having the force of law)
of any such Authority, central bank or comparable agency, shall make it unlawful
or impossible for any of the Lenders (or any of their respective Lending
Offices) to honor its obligations hereunder to make or maintain any LIBOR Rate
Loan, such Lender shall promptly give notice thereof to the Administrative Agent
and the Administrative Agent shall promptly give notice to the Borrower and the
other Lenders. Thereafter, until the Administrative Agent notifies the Borrower
that such circumstances no longer exist, (i) the obligations of the Lenders to
make LIBOR Rate Loans and the right of the Borrower to convert any Loan or
continue any Loan as a LIBOR Rate Loan shall be suspended and thereafter the
Borrower may select only Base Rate Loans hereunder, and (ii) if any of the
Lenders may not lawfully continue to maintain a LIBOR Rate Loan to the end of
the then current Interest Period applicable thereto as a LIBOR Rate Loan, the
applicable LIBOR Rate Loan shall immediately be converted to a Base Rate Loan
for the remainder of such Interest Period.
(c) INCREASED COSTS. If, after the date hereof, the introduction of, or any
change in, any Applicable Law, or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of such Authority, central
bank or comparable agency;
(i) shall subject any of the Lenders (or any of their respective
Lending Offices) to any tax, duty or other charge with respect to any Note,
Letter of Credit or Application or shall change the basis of taxation of
payments to any of the Lenders (or any of their respective Lending Offices)
of the principal of or interest on any Note, Letter of Credit or
Application or any other amounts due under this Agreement in respect
thereof (except for changes in the rate of tax on the overall net income of
any of the Lenders or any of their respective Lending Offices imposed by
the jurisdiction in which such Lender is organized or is or should be
qualified to do business or such Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve (including,
without limitation, any imposed by the Board of Governors of the Federal
Reserve System), special deposit, insurance or capital or similar
requirement against assets of, deposits with or for the account of, or
credit extended by any of the Lenders (or any of their respective Lending
Offices) or shall impose on any of the Lenders (or any of their respective
Lending Offices) or the foreign exchange and interbank markets any other
condition affecting any Note;
and the result of any of the foregoing is to increase the costs to any of
the Lenders of maintaining any LIBOR Rate Loan or issuing or participating
in Letters of Credit or to reduce the yield or amount of any sum received
or receivable by any of the Lenders under this Agreement or under the Notes
in respect of a LIBOR Rate Loan or Letter of Credit or Application, then
such Lender shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify the Borrower of such fact and
demand compensation therefor and, within ten (10) Business Days after such
notice by the Administrative Agent, the Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender or Lenders
for such increased cost or reduction. The Administrative Agent will
promptly notify the Borrower of any event of which it has knowledge which
will entitle such Lender to compensation pursuant to this SECTION 4.14(C);
PROVIDED, that the Administrative Agent shall incur no liability whatsoever
to the Lenders or the Borrower in the event it fails to do so. The amount
of such compensation shall be determined, in the applicable Lender's sole
discretion, based upon the assumption that such Lender funded its
Commitment Percentage of the LIBOR Rate Loans in the London interbank
market and using any reasonable attribution or averaging methods which such
Lender deems appropriate and practical. A certificate of such Lender
setting forth the basis for determining such amount or amounts necessary to
compensate such Lender shall be forwarded to the Borrower through the
Administrative Agent and shall be conclusively presumed to be correct save
for manifest error.
SECTION 4.15 INDEMNITY. The Borrower hereby indemnifies each of the Lenders
against any loss or expense which may arise or be attributable to each Lender's
obtaining, liquidating or employing deposits or other funds acquired to effect,
fund or maintain any Loan (a) as a consequence of any failure by the Borrower to
make any payment when due of any amount due hereunder in connection with a LIBOR
Rate Loan, (b) due to any failure of the Borrower to borrow on a date specified
therefor in a Notice of Borrowing or Notice of Continuation/Conversion or (c)
due to any payment, prepayment or conversion of any LIBOR Rate Loan on a date
other than the last day of the Interest Period therefor. The amount of such loss
or expense shall be determined, in the applicable Lender's sole discretion,
based upon the assumption that such Lender funded its Commitment Percentage of
the LIBOR Rate Loans in the London interbank market and using any reasonable
attribution or averaging methods which such Lender deems appropriate and
practical. A certificate of such Lender setting forth the basis for determining
such amount or amounts necessary to compensate such Lender shall be forwarded to
the Borrower through the Administrative Agent and shall be conclusively presumed
to be correct save for manifest error.
SECTION 4.16 CAPITAL REQUIREMENTS. If either (a) the introduction of, or
any change in, or in the interpretation of, any Applicable Law or (b) compliance
with any guideline or request from any central bank or comparable agency or
other Governmental Authority (whether or not having the force of law), has or
would have the effect of reducing the rate of return on the capital of, or has
affected or would affect the amount of capital required to be maintained by, any
Lender or any corporation controlling such Lender as a consequence of, or with
reference to the Commitments and other commitments of this type, below the rate
which the Lender or such other corporation could have achieved but for such
introduction, change or compliance, then within five (5) Business Days after
written demand by any such Lender, the Borrower shall pay to such Lender from
time to time as specified by such Lender additional amounts sufficient to
compensate such Lender or other corporation for such reduction. A certificate as
to such amounts submitted to the Borrower and the Administrative Agent by such
Lender, shall, in the absence of manifest error, be presumed to be correct and
binding for all purposes.
SECTION 4.17 TAXES.
(a) PAYMENTS FREE AND CLEAR. Any and all payments by the Borrower hereunder
or under the Notes or the Letters of Credit shall be made free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholding, and all liabilities with respect thereto
excluding, (i) in the case of each Lender and the Administrative Agent, income
and franchise taxes imposed by the jurisdiction under the laws of which such
Lender or the Administrative Agent (as the case may be) is organized or is or
should be qualified to do business or any political subdivision thereof and (ii)
in the case of each Lender, income and franchise taxes imposed by the
jurisdiction of such Lender's Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "TAXES"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note or Letter of Credit to any Lender or the
Administrative Agent, (A) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this SECTION 4.17) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the amount
such party would have received had no such deductions been made, (B) the
Borrower shall make such deductions, (C) the Borrower shall pay the full amount
deducted to the relevant taxing authority or other authority in accordance with
applicable law, and (D) the Borrower shall deliver to the Administrative Agent
evidence of such payment to the relevant taxing authority or other authority in
the manner provided in SECTION 4.17(D).
(b) STAMP AND OTHER TAXES. In addition, the Borrower shall pay any present
or future stamp, registration, recordation or documentary taxes or any other
similar fees or charges or excise or property taxes, levies of the United States
or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the Letters of Credit, the other Loan Documents, or the perfection of any
rights or security interest in respect thereto (hereinafter referred to as
"OTHER TAXES").
(c) INDEMNITY. The Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this SECTION 4.17) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be made within thirty (30) days from the date such
Lender or the Administrative Agent (as the case may be) makes written demand
therefor.
(d) EVIDENCE OF PAYMENT. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent, at its address referred to in SECTION 13.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
(e) DELIVERY OF TAX FORMS. Each Lender organized under the laws of a
jurisdiction other than the United States or any state thereof shall deliver to
the Borrower, with a copy to the Administrative Agent, on the Closing Date or
concurrently with the delivery of the relevant Assignment and Acceptance, as
applicable, (i) two United States Internal Revenue Service Forms W-8ECI or Forms
W-8BEN, as applicable (or successor forms) properly completed and certifying in
each case that such Lender is entitled to a complete exemption from withholding
or deduction for or on account of any United States federal income taxes, and
(ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable form,
as the case may be, to establish an exemption from United States backup
withholding taxes. Each such Lender further agrees to deliver to the Borrower,
with a copy to the Administrative Agent, a Form W-8ECI or W-8BEN and Form W-8 or
W-9, or successor applicable forms or manner of certification, as the case may
be, on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower, certifying in the case of a Form
W-8ECI or W-8BEN that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes (unless in any such case an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders such forms inapplicable or
the exemption to which such forms relate unavailable and such Lender notifies
the Borrower and the Administrative Agent that it is not entitled to receive
payments without deduction or withholding of United States federal income taxes)
and, in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax. The Borrower shall not be required to pay any
additional amount to any non-U.S. Lender in respect of United States withholding
tax pursuant to SECTION 4.17(A) to the extent that the obligation to withhold
such tax existed at the time such non-U.S. Lender became a Lender hereunder,
unless such obligation would not have arisen but for a failure by such non-U.S.
Lender to deliver the documents referred to in this SECTION 4.17(E).
(f) SURVIVAL. Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in this SECTION 4.17 shall survive the payment in full of the Obligations and
the termination of the Commitments.
SECTION 4.18 DUTY TO MITIGATE; ASSIGNMENT OF COMMITMENTS UNDER CERTAIN
CIRCUMSTANCES.
(a) Any Lender (or Eligible Assignee) claiming any additional amounts
payable pursuant to SECTION 4.14, 4.15 OR 4.17 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document requested by the Borrower or to change the jurisdiction of its
applicable lending office if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which may
thereafter accrue or avoid the circumstances giving rise to such exercise and
would not, in the sole determination of such Lender (or Eligible Assignee), be
otherwise disadvantageous to such Lender (or Eligible Assignee).
(b) In the event that any Lender shall have delivered a notice pursuant to
SECTION 4.14 or 4.16 or the Borrower shall be required to make additional
payments to any Lender under SECTION 4.17, the Borrower shall have the right, at
its own expense (which shall include the assignment fee referred to in SECTION
13.9), upon notice to such Lender and the Administrative Agent, to require such
Lender to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in SECTION 13.9) all interests, rights and
obligations contained hereunder to another financial institution (including any
other Lender) approved by the Administrative Agent (which approval shall not be
unreasonably withheld) which shall assume such obligations; PROVIDED that (i) no
such assignment shall conflict with any law, rule or regulation or order of any
Governmental Authority and (ii) the assignee or the Borrower, as the case may
be, shall pay to the affected Lender in immediately available funds on the date
of such assignment the principal of and interest accrued to the date of payment
on, or transfer of, the Loans made by it hereunder and all other amounts accrued
for its account or owed to it hereunder (including the additional amounts
asserted and payable pursuant to SECTION 4.14, 4.16 OR 4.17, if any).
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1 CLOSING. The closing shall take place at the offices of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., Charlotte, North Carolina at 9:00 a.m. on
May 8, 2003, or on such other date and at such other place as the parties hereto
shall mutually agree.
SECTION 5.2 CONDITIONS TO CLOSING AND INITIAL EXTENSIONS OF CREDIT. The
obligations of the Lenders to close this Agreement and to make the initial Loan
and issue the initial Letters of Credit are subject to the satisfaction of each
of the following conditions:
(a) EXECUTED LOAN DOCUMENTS. This Agreement, the Notes, the Guarantee
Agreement and any other Loan Documents shall have been duly authorized, executed
and delivered to the Administrative Agent by the parties thereto, shall be in
full force and effect and no default shall exist thereunder, and the Borrower
shall have delivered original counterparts thereof to the Administrative Agent.
(b) CLOSING CERTIFICATES; ETC.
(i) OFFICER'S CERTIFICATE OF THE BORROWER. The Administrative Agent
shall have received a certificate from the chief executive officer or chief
financial officer of the Borrower, in form and substance satisfactory to
the Administrative Agent, to the effect that all representations and
warranties of the Borrower contained in this Agreement and the other Loan
Documents are true, correct and complete; that the Borrower is not in
violation of any of the covenants contained in this Agreement and the other
Loan Documents; that, after giving effect to the transactions contemplated
by this Agreement, no Default or Event of Default has occurred and is
continuing; and that the Borrower has satisfied each of the closing
conditions.
(ii) PARTNERSHIP DOCUMENTS; SECRETARY'S CERTIFICATES. The
Administrative Agent shall have received (A) a certificate of the Secretary
or Assistant Secretary of the Borrower and each Guarantor dated the Closing
Date and certifying with respect to the Borrower and each Guarantor (1)
that attached thereto is a true and complete copy of the organizational
documents and all amendments thereto of each of them, certified as of a
recent date by the appropriate Governmental Authority in its jurisdiction
of organization, (2) that attached thereto is a true and complete copy of
the partnership agreement, by-laws or equivalent document of each of them
in effect on the Closing Date and at all times since a date prior to the
date of the resolutions described in clause (3) below, (3) that attached
thereto is a true and complete copy of resolutions duly adopted by the
respective governing boards of each of them authorizing, as applicable, the
execution, delivery and performance of the Loan Documents to which it is
party and, in the case of the Borrower, the borrowings hereunder, and that
such resolutions have not been modified, rescinded or amended and are in
full force and effect, (4) that the organizational documents of each of
them have not been amended since the date of the last amendment thereto
shown on the certificate of good standing attached thereto and (5) as to
the incumbency and specimen signature of each officer executing any Loan
Document, Partnership Document or any other document delivered in
connection herewith on its behalf; and (B) a certificate of another officer
as to the incumbency and specimen signature of such Secretary or Assistant
Secretary executing the certificate pursuant to (A) above.
(iii) CERTIFICATES OF GOOD STANDING. The Administrative Agent shall
have received long-form certificates as of a recent date of the good
standing of the Borrower and each Subsidiary under the laws of their
respective jurisdictions of organization and a certificate of the relevant
taxing authorities of such jurisdictions certifying that such Person has
filed required tax returns and owes no delinquent taxes.
(iv) OPINIONS OF COUNSEL. The Administrative Agent shall have received
favorable opinions of counsel to the Borrower addressed to the
Administrative Agent and the Lenders with respect to the Borrower, the
Guarantors, the Loan Documents and such other matters as the Lenders shall
request.
(v) TAX FORMS. The Administrative Agent shall have received copies of
the United States Internal Revenue Service forms required by SECTION
4.17(E).
(vi) INSURANCE CERTIFICATE. The Administrative Agent shall have
received a detailed schedule of the Borrower's insurance then in effect,
stating the names of the insurance companies, the amounts and rates of the
insurance, the dates of the expiration thereof and the properties and risks
covered thereby.
(c) CONSENTS; DEFAULTS.
(i) GOVERNMENTAL AND THIRD PARTY APPROVALS. All necessary approvals,
authorizations and consents, if any be required, of any Person, including,
without limitation, board approvals of the Parent and the General Partner,
as applicable, and of all Governmental Authorities and courts having
jurisdiction with respect to the transactions contemplated by this
Agreement and the other Loan Documents shall have been obtained.
(ii) NO INJUNCTION, ETC. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or
proposed before any Governmental Authority to enjoin, restrain, or
prohibit, or to obtain substantial damages in respect of, or which is
related to or arises out of this Agreement or the other Loan Documents or
the consummation of the transactions contemplated hereby or thereby, or
which, in the Administrative Agent's discretion, would make it inadvisable
to consummate the transactions contemplated by this Agreement and such
other Loan Documents.
(iii) NO EVENT OF DEFAULT. No Default or Event of Default shall have
occurred and be continuing.
(d) FINANCIAL MATTERS.
(i) FINANCIAL STATEMENTS. The Administrative Agent shall have received
the most recent audited Consolidated financial statements (including,
without limitation, pro forma balance sheets) of the Borrower and its
Subsidiaries, all in form and substance satisfactory to the Administrative
Agent.
(ii) FINANCIAL CONDITION CERTIFICATE. The Borrower shall have
delivered to the Administrative Agent a certificate, in form and
substance satisfactory to the Administrative Agent, and certified as
accurate by the chief executive officer or chief financial officer of
the Borrower, that the Borrower and its Subsidiaries, on a
Consolidated basis, are Solvent.
(iii) PAYMENT AT CLOSING; FEE LETTERS. There shall have been paid
by the Borrower to the Administrative Agent and the Lenders the fees
set forth or referenced in SECTION 4.9 and any other accrued and
unpaid fees or commissions due hereunder (including, without
limitation, legal fees and expenses), and to any other Person such
amount as may be due thereto in connection with the transactions
contemplated hereby, including all taxes, fees and other charges in
connection with the execution, delivery, recording, filing and
registration of any of the Loan Documents.
(e) MISCELLANEOUS.
(i) NOTICE OF BORROWING; NOTICE OF ACCOUNT DESIGNATION. The
Administrative Agent shall have received a Notice of Borrowing from the
Borrower in accordance with SECTION 4.1(A), and a Notice of Account
Designation specifying the account or accounts to which the proceeds of any
loans made after the Closing Date are to be disbursed.
(ii) PROCEEDINGS AND DOCUMENTS. All opinions, certificates and other
instruments and all proceedings in connection with the transactions
contemplated by this Agreement shall be satisfactory in form and substance
to the Lenders. The Lenders shall have received copies of all other
instruments and other evidence as the Lender may reasonably request, in
form and substance satisfactory to the Lenders, with respect to the
transactions contemplated by this Agreement and the taking of all actions
in connection therewith.
(iii) SENIOR NOTE PAYMENT. The Borrower shall have obtained a
financing commitment for the refinancing of the $42.5 million principal
amortization payment due June 30, 2003 on the Senior Notes in form and
substance and on terms and conditions satisfactory to the Administrative
Agent, or shall have reserved for or otherwise have provided for such
payment to be made in a manner satisfactory to the Administrative Agent.
(iv) DUE DILIGENCE AND OTHER DOCUMENTS. The Administrative Agent shall
have completed, to its satisfaction, all legal and business due diligence
with respect to any aspect to the transactions relating to the Borrower,
Parent and the General Partner, including, without limitation,
environmental due diligence and the Borrower shall have delivered to the
Administrative Agent such other documents, certificates and opinions as the
Administrative Agent reasonably requests, certified by a secretary or
assistant secretary of the Borrower as a true and correct copy thereof. To
the extent requested, the Administrative Agent shall have received,
reviewed, and approved in its reasonable satisfaction any other agreement
not specifically referenced herein, the terms of which such agreements
govern the future management and operations of the Borrower.
(v) CONTINUATION OF THE EXISTING LOANS. (A) All outstanding Revolving
Credit Loans under the Original Credit Agreement (the "EXISTING REVOLVING
CREDIT LOANS") made by any Original Lender who is not a Lender hereunder
shall be repaid in full and the commitments and other obligations and
rights (except as expressly set forth in the Original Credit Agreement) of
such Original Lender shall be terminated, (B) all Existing Revolving Credit
Loans not being repaid under item (A) above, shall be, from and after the
Closing Date, Revolving Credit Loans hereunder and the Administrative Agent
shall make such transfers of funds as are necessary in order that the
outstanding balance of such Revolving Credit Loans, together with any
Revolving Credit Loans funded hereunder on the Closing Date, reflect the
Revolving Credit Commitments of the Lenders hereunder, (C) all outstanding
Acquisition Loans under the Original Credit Agreement (the "EXISTING
ACQUISITION LOANS") made by any Original Lender who is not a Lender
hereunder shall be repaid in full and the commitments and other obligations
and rights (except as expressly set forth in the Original Credit Agreement)
of such Original Lender shall be terminated, (D) all Existing Acquisition
Loans not being repaid under item (C) above, shall be, from and after the
Closing Date, Acquisition Loans hereunder, and the Administrative Agent
shall make such transfers of funds as are necessary in order that the
outstanding balance of such Acquisition Loans, together with any
Acquisition Loans funded hereunder on the Closing Date, reflect the
Acquisition Commitments of the Lenders hereunder, (E) all outstanding
Letters of Credit under the Original Credit Agreement and the Wachovia
Letter of Credit (collectively, the "EXISTING LETTERS OF CREDIT") shall be,
from and after the Closing Date, Letters of Credit hereunder, (F) all
accrued but unpaid interest due on the Existing Revolving Credit Loans and
Existing Acquisition Loans to the Closing Date shall be paid in cash in
full on the Closing Date, (G) all accrued but unpaid fees under the
Original Credit Agreement owing to the Administrative Agent and the Lenders
under the Original Credit Agreement to the Closing Date shall be paid in
cash in full on the Closing Date, and (H) all outstanding promissory notes
issued by the Borrower to the Original Lenders under the Original Credit
Agreement shall be deemed canceled and the originally executed copies
thereof shall be promptly returned to the Administrative Agent who shall
forward such notes to the Borrower.
SECTION 5.3 CONDITIONS TO ALL EXTENSIONS OF CREDIT. The obligations of the
Lenders to make any Extension of Credit is subject to the satisfaction of the
following conditions precedent on the relevant borrowing or issue date, as
applicable:
(a) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in Article VI or otherwise made by the Borrower or any
Subsidiary in any Loan Document shall be true and correct, in all material
respects, on and as of such borrowing or issuance date with the same effect as
if made on and as of such date.
(b) NO EXISTING DEFAULT. No Default or Event of Default shall have occurred
and be continuing hereunder (i) on the borrowing date with respect to such Loan
or after giving effect to the Loans to be made on such date or (ii) or the issue
date with respect to such Letter of Credit or after giving affect to such
Letters of Credit on such date.
(c) OFFICER'S COMPLIANCE CERTIFICATE; ADDITIONAL DOCUMENTS. The
Administrative Agent shall have received the current Officer's Compliance
Certificate and each additional document, instrument, legal opinion or other
item of information reasonably requested by it.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 6.1 REPRESENTATIONS AND WARRANTIES. To induce the Administrative
Agent and Lenders to enter into this Agreement and to induce the Lenders to make
the Extensions of Credit, the Borrower hereby represents and warrants to the
Administrative Agent and Lenders both before and after giving effect to the
transactions contemplated hereunder that:
(a) ORGANIZATION; POWER; QUALIFICATION. Each of the Borrower, its
Subsidiaries, the Parent and the General Partner is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, has the power and authority to own its properties
and to carry on its business as now being and hereafter proposed to be conducted
and is duly qualified and authorized to do business in each jurisdiction in
which the character of its properties or the nature of its business requires
such qualification and authorization, except where the failure to so qualify
would not have a Material Adverse Effect. The jurisdictions in which the
Borrower and its Subsidiaries are organized and qualified to do business are
described on SCHEDULE 6.1(A).
(b) OWNERSHIP.
(i) Each Subsidiary of the Borrower is listed on Part I of SCHEDULE
6.1(B). The capitalization of the Borrower and its Subsidiaries consists of
the number of shares of stock or other ownership interests, authorized,
issued and outstanding, of such classes and series, with or without par
value, described on Part I of SCHEDULE 6.1(B). All outstanding shares or
other ownership interests have been duly authorized and validly issued and
are fully paid and nonassessable. The shareholders or other equity owners
of its Subsidiaries of the Borrower and the number of shares or other
ownership interests owned by each are described on Part I of SCHEDULE
6.1(B). There are no outstanding warrants, subscriptions, options,
securities, instruments or other rights of any type or nature whatsoever,
which are convertible into, exchangeable for or otherwise provide for or
permit the issuance of capital stock or other ownership interests of the
Borrower or its Subsidiaries, except as described on Part I of SCHEDULE
6.1(B).
(ii) The sole general partner of the Parent is the General Partner,
which owns 224,625 General Partner Units, representing in the aggregate a
1.0% general partner interest in the Parent. The sole general partner of
the Borrower is the General Partner, which owns a 1.0101% general partner
interest in the Borrower. The only limited partner of the Borrower is the
Parent, which owns a 98.9899% limited partner interest in the Borrower and
the Borrower does not have any partners other than the General Partner and
the Parent. Each General Partner Unit is entitled to share pro rata with
the Common Units in all distributions by the Parent.
(c) AUTHORIZATION OF AGREEMENT, LOAN DOCUMENTS AND BORROWING. Each of the
Borrower and its Subsidiaries has the right, power and authority and has taken
all necessary corporate and other action to authorize the execution, delivery
and performance of this Agreement and each of the other Loan Documents to which
it is a party in accordance with their respective terms. This Agreement and each
of the other Loan Documents have been duly executed and delivered by the duly
authorized officers of the Borrower and each of its Subsidiaries party thereto,
and each such document constitutes the legal, valid and binding obligation of
the Borrower or its Subsidiary party thereto, enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar state or federal debtor relief laws from
time to time in effect which affect the enforcement of creditors' rights in
general and the availability of equitable remedies.
(d) COMPLIANCE OF AGREEMENT, LOAN DOCUMENTS AND BORROWING WITH LAWS, ETC.
The execution, delivery and performance by the Borrower and its Subsidiaries of
the Loan Documents to which each such Person is a party, in accordance with
their respective terms, the borrowings hereunder and the transactions
contemplated hereby do not and will not, by the passage of time, the giving of
notice or otherwise, (i) require any Governmental Approval or violate any
Applicable Law relating to the Borrower or any of its Subsidiaries, (ii)
conflict with, result in a breach of or constitute a default under the articles
of incorporation, bylaws or other organizational documents of the Borrower or
any of its Subsidiaries or any indenture, agreement or other instrument to which
such Person is a party or by which any of its properties may be bound or any
Governmental Approval relating to such Person, or (iii) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by such Person other than Liens arising under the
Loan Documents.
(e) COMPLIANCE WITH LAW; GOVERNMENTAL APPROVALS. Each of the Borrower and
its Subsidiaries (i) has all Governmental Approvals required by any Applicable
Law for it to conduct its business, each of which is in full force and effect,
is final and not subject to review on appeal and is not the subject of any
pending or, to the best of its knowledge, threatened attack by direct or
collateral proceeding, and (ii) is in compliance with each Governmental Approval
applicable to it and in compliance with all other Applicable Laws relating to it
or any of its respective properties, except, in each case, to the extent such
non-compliance would not have a Material Adverse Effect.
(f) TAX RETURNS AND PAYMENTS. Each of the Borrower, its Subsidiaries, the
General Partner and the Parent has duly filed or caused to be filed all material
federal, state and local tax returns required by Applicable Law to be filed, and
has paid, or made adequate provision for the payment of, all federal, state,
local and other taxes, assessments and governmental charges or levies upon it
and its property, income, profits and assets which are due and payable, other
than those the validity of which the Borrower, any Subsidiary, the General
Partner or the Parent is contesting in good faith by appropriate proceedings and
with respect to which the Borrower, such Subsidiary, the General Partner or the
Parent shall, to the extent required by GAAP, have set aside on its books
adequate reserves. No Governmental Authority has asserted any Lien or other
claim against the Borrower or Subsidiary thereof with respect to unpaid taxes
which has not been discharged or resolved. The charges, accruals and reserves on
the books of the Borrower and any of its Subsidiaries in respect of federal,
state, local and other taxes for all Fiscal Years and portions thereof since the
organization of the Borrower and any of its Subsidiaries are in the judgment of
the Borrower adequate, and the Borrower does not anticipate any additional taxes
or assessments for any of such years.
(g) INTELLECTUAL PROPERTY MATTERS. Each of the Borrower and its
Subsidiaries owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, trade names, trade name rights,
copyrights and rights with respect to the foregoing which are required to
conduct its business. No event has occurred which permits, or after notice or
lapse of time or both would permit, the revocation or termination of any such
rights, and neither the Borrower nor any Subsidiary thereof is liable to any
Person for infringement under Applicable Law with respect to any such rights as
a result of its business operations.
(h) ENVIRONMENTAL AND SAFETY MATTERS. Each of the Business, the Borrower,
each Subsidiary, the General Partner and the Parent has complied in all respects
with all Environmental and Safety Laws except for violations that either alone
or in the aggregate could not reasonably be expected to result in a Material
Adverse Effect. None of the Business, the Borrower, any Subsidiary, the General
Partner or the Parent has received notice of any failure so to comply which
alone or together with any other such failure could reasonably be expected to
result in a Material Adverse Effect. None of the Business, the Borrower, any
Subsidiary, the General Partner or the Parent manages or handles any hazardous
wastes, hazardous substances, hazardous materials, toxic substances or toxic
pollutants referred to in or regulated by Environmental and Safety Laws in
violation of such laws or of any other applicable law where such violation could
reasonably be expected to result, individually or together with other
violations, in a Material Adverse Effect. To the best knowledge of the Borrower,
none of the Business, the Borrower, any Subsidiary, the General Partner or the
Parent has any liabilities or contingent liabilities relating to environmental
or employee health and safety matters (including on-site or off-site
contamination) which, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
(i) ERISA.
(i) The Borrower and each ERISA Affiliate is in material compliance
with all applicable provisions of ERISA and the regulations and published
interpretations thereunder and no ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other ERISA Events
could reasonably be expected to result in a Material Adverse Effect.
(ii) Each Employee Benefit Plan that is intended to be qualified under
Section 401(a) of the Code has been determined by the Internal Revenue
Service to be so qualified, and each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code.
(iii) Except where the failure of any of the following representations
to be correct in all material respects could not reasonably be expected to
have a Material Adverse Effect, neither the Borrower nor any ERISA
Affiliate has: (A) engaged in a nonexempt prohibited transaction described
in Section 406 of ERISA or Section 4975 of the Code, (B) incurred any
liability to the PBGC which remains outstanding other than the payment of
premiums and there are no premium payments which are due and unpaid, (C)
failed to make a required contribution or payment to a Multiemployer Plan,
or (D) failed to make a required installment or other required payment
under Section 412 of the Code.
(j) MARGIN STOCK. Neither the Borrower nor any Subsidiary thereof is
engaged principally or as one of its activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" (as each
such term is defined or used in the regulations of the Board of Governors of the
Federal Reserve System). No part of the proceeds of any of the Loans will be
used for purchasing or carrying margin stock in violation of, or for any purpose
which violates, the provisions of Regulation T, U or X of such Board of
Governors.
(k) GOVERNMENT REGULATION. Neither the Borrower nor any Subsidiary thereof
is an "investment company" or a company "controlled" by an "investment company"
(as each such term is defined or used in the Investment Company Act of 1940, as
amended) and neither the Borrower nor any Subsidiary thereof is, or after giving
effect to any Extension of Credit will be, subject to regulation under the
Public Utility Holding Company Act of 1935 or the Interstate Commerce Act, each
as amended, or any other Applicable Law which limits its ability to incur or
consummate the transactions contemplated hereby.
(l) AGREEMENTS. (i) None of the Business, the Borrower, any of its
Subsidiaries, the General Partner nor the Parent is a party to any agreement or
instrument or subject to any restriction in its partnership or corporate
organizational documents that (i) will have the effect of prohibiting or
restraining, or will impose adverse conditions upon, any of the transactions
contemplated hereby or the payment of dividends or the making of any loans,
investments or transfers by any Subsidiary to or in the Borrower or (ii) has
resulted or could reasonably be expected to result in a Material Adverse Effect.
(m) NO DEFAULTS. None of the Business, the Borrower, any of its
Subsidiaries, the General Partner or the Parent is in default in any manner, and
there is no event or condition which with notice or lapse of time or both would
constitute such a default or event of default, under any provision of any Senior
Note, any Refinancing Note, the Senior Note Agreement, any Refinancing Note
Agreement, or any indenture or other agreement or instrument evidencing
Indebtedness, any Contingent Obligation set forth on SCHEDULE 6.1(M) or any
other material agreement or instrument to which it is a party or by which it or
any of its properties or assets are or may be bound, where such default could
reasonably be expected to result in a Material Adverse Effect.
(n) EMPLOYEE RELATIONS. None of the Borrower and its Subsidiaries is,
except as set forth on SCHEDULE 6.1(n), party to any collective bargaining
agreement nor has any labor union been recognized as the representative of its
employees. There are no strikes against the Business, the Borrower or any
Subsidiary pending or, to the best knowledge of the Borrower, threatened, other
than strikes which, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. The hours worked and payments
made to employees of the Business, the Borrower, each Subsidiary, the General
Partner and the Parent have not been in violation of the Fair Labor Standards
Act or any other applicable law dealing with such matters except for violations
that either alone or in the aggregate could not reasonably be expected to result
in a Material Adverse Effect. All material payments due from the Business, the
Borrower, any Subsidiary, the General Partner and the Parent, or for which any
claim may be made against the Business, the Borrower, any Subsidiary, the
General Partner or the Parent, on account of wages and employee health and
welfare insurance and other benefits have been paid or accrued as a liability on
the books of the Business, the Borrower, such Subsidiary, the General Partner or
the Parent, as applicable, in compliance with GAAP.
(o) BURDENSOME PROVISIONS. Neither the Borrower nor any Subsidiary thereof
is subject to any Governmental Approval or Applicable Law which is so unusual or
burdensome as in the foreseeable future could be reasonably expected to have a
Material Adverse Effect. The Borrower and its Subsidiaries do not presently
anticipate that future expenditures needed to meet the provisions of any
statutes, orders, rules or regulations of a Governmental Authority will be so
burdensome as to have a Material Adverse Effect.
(p) FINANCIAL STATEMENTS. The audited Consolidated balance sheets of the
Borrower and its Subsidiaries as of September 28, 2002 and the related
statements of income and partners' capital and cash flows for the Fiscal Years
then ended, copies of which have been furnished to the Administrative Agent and
each Lender, are complete and correct and fairly present the assets, liabilities
and financial position of the Borrower and its Subsidiaries as at such dates,
and the results of the operations and changes of financial position for the
periods then ended. All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP. The
Borrower and its Subsidiaries have no Indebtedness, obligation or other unusual
forward or long-term commitment which is not fairly reflected in the foregoing
financial statements or in the notes thereto.
(q) NO MATERIAL ADVERSE CHANGE. Since September 28, 2002 there has been no
material adverse change in the properties, business, operations, prospects, or
condition (financial or otherwise) of the Borrower and its Subsidiaries, taken
as a whole, and no event has occurred or condition arisen that could reasonably
be expected to have a Material Adverse Effect.
(r) SOLVENCY. As of the Closing Date and after giving effect to each
Extension of Credit made hereunder, the Borrower and each of its Subsidiaries
will be Solvent.
(s) TITLES TO PROPERTIES. Each of the Borrower and its Subsidiaries has
such title to the real property owned by it as is necessary or desirable to the
conduct of its business and valid and legal title to all of its material
personal property and assets, including, but not limited to, those reflected on
the balance sheets of the Borrower and its Subsidiaries delivered pursuant to
SECTION 6.1(P), except those which have been disposed of by the Borrower or its
Subsidiaries subsequent to such date which dispositions have been in the
ordinary course of business, of assets or properties no longer used or usable in
the conduct of its business or as otherwise expressly permitted hereunder.
(t) LIENS. None of the properties and assets of the Borrower or any
Subsidiary thereof is subject to any Lien, except Liens permitted pursuant to
SECTION 10.2. No financing statement under the Uniform Commercial Code of any
state which names the Borrower or any Subsidiary thereof or any of their
respective trade names or divisions as debtor and which has not been terminated,
has been filed in any state or other jurisdiction and neither the Borrower nor
any Subsidiary thereof has signed any such financing statement or any security
agreement authorizing any secured party thereunder to file any such financing
statement, except to perfect those Liens permitted by SECTION 10.2. The
Obligations hereunder are senior unsecured obligations of the Borrower which
rank PARI PASSU with the Senior Notes.
(u) INDEBTEDNESS AND CONTINGENT OBLIGATIONS. SCHEDULE 6.1(U) is a complete
and correct listing of all Indebtedness and Contingent Obligations of the
Borrower and its Subsidiaries in excess of $5,000,000.
(v) LITIGATION. Except for the SCANA Litigation, there are no actions,
suits or proceedings pending nor, to the knowledge of the Borrower, threatened
against or in any other way relating adversely to or affecting the Borrower or
any Subsidiary thereof or any of their respective properties in any court or
before any arbitrator of any kind or before or by any Governmental Authority,
except for actions, suits or proceedings that, if adversely determined, could,
individually or in the aggregate, not reasonably be expected to result in a
Material Adverse Effect. The information regarding the SCANA Litigation
contained in the materials filed by the Parent with the Securities Exchange
Commission is true and correct in all material respects.
(w) ABSENCE OF DEFAULTS. No event has occurred or is continuing which
constitutes a Default or an Event of Default, or which constitutes, or which
with the passage of time or giving of notice or both would constitute, a default
or event of default by the Borrower or any Subsidiary thereof under any
judgment, decree or order by which the Borrower or its Subsidiaries or any of
their respective properties may be bound or which would require the Borrower or
its Subsidiaries to make any payment thereunder prior to the scheduled maturity
date therefor.
(x) SENIOR NOTE AGREEMENT. Attached hereto as EXHIBIT H is a true and
correct copy of the Senior Note Agreement, including all amendments thereto. No
default or event of default, or event or condition which with notice or lapse of
time or both would constitute such a default or event of default with respect to
the Borrower exists.
(y) ACCURACY AND COMPLETENESS OF INFORMATION. All written information,
reports and other papers and data produced by or on behalf of the Borrower or
any Subsidiary thereof and furnished to the Lenders were, at the time the same
were so furnished, complete and correct in all material respects; PROVIDED, that
any projections or PRO FORMA financial information contained in any of the
foregoing are represented and warranted only to have been based upon good faith
estimates and assumptions believed by the management of the Borrower and its
Subsidiaries to be reasonable at the time prepared. No document furnished or
written statement made to the Administrative Agent or the Lenders by the
Borrower or any Subsidiary thereof in connection with the negotiation,
preparation or execution of this Agreement or any of the Loan Documents contains
or will contain any untrue statement of a fact material to the creditworthiness
of the Borrower or its Subsidiaries or omits or will omit to state a fact
necessary in order to make the statements contained therein not misleading. The
Borrower is not aware of any facts which it has not disclosed in writing to the
Administrative Agent having a Material Adverse Effect, or insofar as the
Borrower can now foresee, could reasonably be expected to have a Material
Adverse Effect.
SECTION 6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including but not limited to any such representation or warranty made
in or in connection with any amendment thereto) shall constitute representations
and warranties made under this Agreement. All representations and warranties
made under this Agreement shall be made or deemed to be made at and as of the
Closing Date, shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or any borrowing hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been finally and indefeasibly paid and
satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in SECTION 13.11, the Borrower will furnish or
cause to be furnished to the Administrative Agent and to the Lenders at their
respective addresses as set forth on SCHEDULE 1.1(A), or such other office as
may be designated by the Administrative Agent and Lenders from time to time:
SECTION 7.1 FINANCIAL STATEMENTS.
(a) QUARTERLY FINANCIAL STATEMENTS. As soon as practicable and in any event
within fifty (50) days after the end of each of the first three fiscal quarters
(or, if such date is earlier, five (5) days after the date of any required
public filing by the Parent of Form 10-Q for such fiscal quarter with the
Securities and Exchange Commission), an unaudited Consolidated balance sheet of
the Borrower and its Subsidiaries as of the close of such fiscal quarter and
unaudited Consolidated statements of income, partners' capital and cash flows
for the fiscal quarter then ended and that portion of the Fiscal Year then
ended, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year and prepared by the Borrower
in accordance with GAAP and, if applicable, containing disclosure of the effect
on the financial position or results of operations of any change in the
application of accounting principles and practices during the period, and
certified by the chief financial officer of the Borrower to present fairly in
all material respects the financial condition of the Borrower and its
Subsidiaries as of their respective dates and the results of operations of the
Borrower and its Subsidiaries for the respective periods then ended, subject to
normal year end adjustments.
(b) ANNUAL FINANCIAL STATEMENTS OF BORROWER. As soon as practicable and in
any event within ninety-five (95) days after the end of each Fiscal Year (or, if
such date is earlier, five (5) days after the date of any required public filing
by the Parent of Form 10-K for such Fiscal Year with the Securities and Exchange
Commission), an unaudited Consolidated balance sheet of the Borrower and its
Subsidiaries as of the close of such Fiscal Year and unaudited Consolidated
statements of income, partners' capital and cash flows for the Fiscal Year then
ended, including the notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures for the preceding Fiscal Year and
prepared by the Borrower in accordance with GAAP and, if applicable, containing
disclosure of the effect on the financial position or results of operations of
any change in the application of accounting principles and practices during the
period, and certified by the chief financial officer of the Borrower to present
fairly in all material respects the financial condition of the Borrower and its
Subsidiaries as of their respective dates and the results of operations of the
Borrower and its Subsidiaries for the respective periods then ended.
(c) ANNUAL FINANCIAL STATEMENTS OF PARENT. As soon as practicable and in
any event within ninety-five (95) days after the end of each Fiscal Year (or, if
such date is earlier, five (5) days after the date of any required public filing
by the Parent of Form 10-K for such Fiscal Year with the Securities and Exchange
Commission), an audited Consolidated balance sheet of the Parent and its
Subsidiaries as of the close of such Fiscal Year and audited Consolidated
statements of income, partners' capital and cash flows for the Fiscal Year then
ended, including the notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures for the preceding Fiscal Year and
audited by PricewaterhouseCoopers LLP or other independent certified public
accountants reasonably acceptable to the Administrative Agent and, if
applicable, containing disclosure of the effect on the financial position or
results of operation of any change in the application of accounting principles
and practices during the year, and accompanied by a report thereon by such
certified public accountants that is not qualified with respect to scope
limitations imposed by the Parent or any of its Subsidiaries or with respect to
accounting principles followed by the Parent or any of its Subsidiaries not in
accordance with GAAP.
SECTION 7.2 OFFICER'S COMPLIANCE CERTIFICATE. At each time financial
statements are delivered pursuant to SECTIONS 7.1(A) ,(B) or (C), a certificate
of the chief financial officer or the treasurer of the Borrower in the form of
EXHIBIT F attached hereto (an "OFFICER'S COMPLIANCE CERTIFICATE").
SECTION 7.3 OTHER REPORTS.
(a) Promptly upon receipt thereof, copies of all reports, if any, submitted
to the Parent, the Borrower or their respective Board of Supervisors by their
independent public accountants in connection with their auditing function,
including, without limitation, any management report and any management
responses thereto;
(b) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
General Partner, the Parent, the Borrower or any Subsidiary with the Securities
and Exchange Commission or any Governmental Authority succeeding to any of or
all the functions of said Commission, or with any national securities exchange,
or distributed to the holders of Common Unit, as the case may be;
(c) concurrently with any delivery of any statement, report, certificate or
other material under Section 5A of the Senior Note Agreement that has not
otherwise been delivered to the Lenders, a copy of each such statement, report,
certificate or other material, which shall in the case of officers' and
accountants' certificates be addressed to the Lenders and provide the analogous
information and certifications in respect of the Loan Documents;
(d) written notice of any action or decision by the Board of Supervisors of
the Parent to change the amount of the Minimum Quarterly Distribution or not to
pay all or any portion of the Minimum Quarterly Distribution, which notice shall
be delivered within three (3) Business Days after such action or decision;
(e) such information and documents relating to the SCANA Litigation as may
be reasonably requested by the Administrative Agent, to the extent such
information or documents are not protected by either the attorney-client or
attorney work product privileges; PROVIDED that the Borrower shall deliver to
the Administrative Agent copies of all filings made by any Person with the court
in connection with the SCANA Litigation within five (5) Business Days of such
filing; and
(f) such other information regarding the operations, business affairs and
financial condition of the Borrower or any of its Subsidiaries (including,
without limitation, any financial or actuarial reports or filings made with
respect to any Employee Benefit Plan) as the Administrative Agent or any Lender
may reasonably request.
SECTION 7.4 NOTICE OF LITIGATION AND OTHER MATTERS. Prompt (but in no event
later than ten (10) days after an officer of the Borrower obtains knowledge
thereof) telephonic and written notice of:
(a) the commencement of all proceedings and investigations by or before any
Governmental Authority and all actions and proceedings in any court or before
any arbitrator against or involving the Borrower or any Subsidiary thereof or
any of their respective properties, assets or businesses, which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect;
(b) any notice of any violation received by the Borrower or any Subsidiary
thereof from any Governmental Authority including, without limitation, any
notice of violation of Environmental and Safety Laws which in any such case
could reasonably be expected to have a Material Adverse Effect;
(c) any labor controversy that has resulted in a strike or other work
action against the Borrower or any Subsidiary thereof that could reasonably be
expected to have a Material Adverse Effect;
(d) any attachment, judgment, lien, levy or order exceeding $10,000,000
that may be assessed against the Borrower or any Subsidiary thereof;
(e) any Default, Event of Default or Senior Note Default;
(f) any event which makes any of the representations set forth in SECTION
6.1 inaccurate in any respect; and
(g) any other development that has resulted in, or could reasonably be
expected to result in a Material Adverse Effect.
SECTION 7.5 ACCURACY OF INFORMATION. All written information, reports,
statements and other papers and data furnished by or on behalf of the Borrower
to the Administrative Agent or any Lender (other than financial forecasts)
whether pursuant to this Article VII or any other provision of this Agreement,
or any other of the Loan Documents, shall be, at the time the same is so
furnished, complete and correct in all material respects to the extent necessary
to give the Administrative Agent or any Lender, (a) with respect to financial
statements and reports, complete, true and accurate knowledge of the subject
matter based on the Borrower's knowledge of the financial condition of the
Borrower and/or its Subsidiaries for the date or period to which such financial
statements or reports relate and, (b) with respect to all other written
information, reports, statements and other papers and data, complete, true and
accurate knowledge of the subject matter based on the Borrower's knowledge
thereof.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until the Obligations have been finally and indefeasibly paid and satisfied
in full and the Commitments terminated, unless consent has been obtained in the
manner provided for in SECTION 13.11, the Borrower will, and will cause each of
its Subsidiaries to:
SECTION 8.1 EXISTENCE; BUSINESSES AND PROPERTIES.
(i) Do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence and qualify and remain
qualified as a foreign entity in each jurisdiction in which the failure to
do so would have a Material Adverse Effect, except as otherwise permitted
by SECTION 10.5.
(ii) Do or cause to be done all things necessary to preserve, renew
and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business
in substantially the manner in which it is presently conducted and
operated; and at all times maintain and preserve all property material to
the conduct of such business and keep such property in good repair, working
order and condition and from time to time make, or cause to be made, all
needed and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times.
SECTION 8.2 INSURANCE. Keep its insurable properties adequately insured at
all times by financially sound and reputable insurers; maintain such other
insurance, to such extent and against such risks, including fire and other risks
insured against by extended coverage, as is customary with similarly situated
companies in the same or similar businesses, including public liability
insurance against claims for personal injury or death or property damage
occurring upon in, about or in connection with the use of any properties owned
occupied or controlled by it and maintain such other insurance as may be
required by Applicable Law; PROVIDED, HOWEVER, that nothing in this SECTION 8.2
shall preclude the Borrower or any Subsidiary from being self-insured to the
extent customary with similarly situated companies in the same or similar
businesses.
SECTION 8.3 TAXES. Pay and discharge promptly when due all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property, before the same shall become
delinquent or in default, as well as all lawful claims for labor, materials and
supplies or otherwise which, if unpaid, would give rise to a Lien upon such
properties or any part thereof; PROVIDED, HOWEVER, that such payment and
discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and adequate reserves in
respect thereof shall be maintained in accordance with GAAP.
SECTION 8.4 EMPLOYEE BENEFITS. Comply in all material respects with the
applicable provisions of ERISA and the Code and furnish to the Administrative
Agent as soon as possible after, and in any event within 10 days after any
Responsible Officer of the Borrower or any ERISA Affiliate knows or has reason
to know that, any ERISA Event has occurred that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Borrower in an aggregate amount exceeding $5,000,000, a
statement of a Financial Officer setting forth details as to such ERISA Event
and the action, if any, that the Borrower proposes to take with respect thereto.
SECTION 8.5 ACCESS TO PREMISES AND RECORDS; CONFIDENTIALITY. Maintain
financial records in accordance with GAAP, and upon reasonable notice permit
representatives of the Lenders to have access to such financial records and the
premises of the Borrower or any Subsidiary at reasonable times and to make such
excerpts from such records as such representatives deem necessary in connection
with their evaluation of the Borrower's ability to repay the Loans or any
Subsidiary's ability to perform its obligations under the Guarantee Agreement.
Each Lender agrees to keep all information obtained by it pursuant to this
SECTION 8.5 and all other non-public information delivered to it by the Borrower
or any Subsidiary pursuant to this Agreement confidential except to the extent
that (i) disclosure is made, subject to this confidentiality agreement, to
Affiliates, officers, directors, employees, agents and representatives of such
Lender or to the Administrative Agent or any other Lender, (ii) disclosure of
such information is made pursuant to applicable law, regulations, subpoena,
judicial process or the like or at the request of any regulatory authority to
which it is subject or to its counsel or auditors or in any legal proceeding
arising out of this Agreement, (iii) such information is or becomes publicly
available other than by such Lender's breach of this SECTION 8.5, (iv)
disclosure is made to an actual or prospective assignee or participant pursuant
to SECTION 13.10 or (v) such information becomes available to such Lender from a
third party which, by making such information available, has not, to such
Lender's knowledge, breached any obligation of confidentiality it may owe.
SECTION 8.6 COMPLIANCE WITH LAWS. Comply with all applicable laws, rules
and regulations, and all orders of any Governmental Authority, applicable to it
or any of its property, business, operations or transactions (including ERISA
and all Environmental and Safety Laws), except where the failure so to comply
could not reasonably be expected to result in a Material Adverse Effect, and
provide prompt written notice to the Lenders following the receipt of any notice
of any violation of any such laws, rules, regulations or orders from any
Governmental Authority charged with enforcing the same where such violation
could reasonably be expected to result in a Material Adverse Effect.
SECTION 8.7 ADDITIONAL GUARANTORS. Notify the Administrative Agent if at
any time the Borrower or any Subsidiary determines to acquire or form any Person
which would upon such acquisition or formation constitute a domestic Subsidiary
and to cause any such newly acquired or formed domestic Subsidiary to become a
guarantor under the Guarantee Agreement by the execution of documentation
reasonably satisfactory to the Administrative Agent immediately upon such
acquisition or formation.
SECTION 8.8 USE OF PROCEEDS. Use the proceeds of (a) the Revolving Credit
Loans for working capital and general partnership purposes of the Borrower and
its Subsidiaries, and payment of fees and expenses incurred in connection with
this Agreement, and (b) the Acquisition Loans to finance Permitted Business
Acquisitions.
SECTION 8.9 PARTNERSHIP DOCUMENTS. Perform and comply with, and cause each
of the General Partner and the Parent to perform and comply in all material
respects with all its obligations under each of the Partnership Documents to
which it is a party and enforce and cause each of the General Partner and the
Parent to enforce, in all material respects, each such Partnership Document
against each other party thereto.
SECTION 8.10 COMPLIANCE WITH ENVIRONMENTAL AND SAFETY LAWS. Comply, and use
reasonable efforts to cause all lessees and other Persons occupying its
properties to comply, in all material respects with all Environmental and Safety
Laws and environmental permits applicable to its operations and properties;
obtain and renew all material environmental permits necessary for its operations
and properties; and conduct any necessary remedial action in accordance with
Environmental and Safety Laws; PROVIDED, however, that neither the Borrower nor
any of its Subsidiaries shall be required to undertake any remedial action to
the extent that its obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained under GAAP with
respect to such circumstances.
SECTION 8.11 PREPARATION OF ENVIRONMENTAL REPORTS. If a Default caused by
reason of a breach of SECTIONS 6.1(H) OR 8.10 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to Lenders within forty-five (45) days after such request, at the
expense of the Borrower, an environmental site assessment report for the
properties which are the subject of such Default prepared by an environmental
consulting firm acceptable to the Administrative Agent and consented to by the
Borrower (which consent shall not be unreasonably withheld or delayed),
indicating the presence or absence of hazardous materials and the estimated cost
of any compliance or remedial action in connection with such properties.
SECTION 8.12 CORPORATE IDENTITY. Do or cause to be done (or refrain from
doing or causing to be done, as the case may be) all things necessary to ensure
that the separate legal identity of the Borrower will at all times be respected
and that neither the Borrower nor any of its Subsidiaries will be liable for any
obligations, contractual or otherwise, of the General Partner, the Parent or any
other entity in which the General Partner or the Parent owns any equity
interest, except as permitted under SECTION 10.6(B) OR SECTION 10.7. Without
limiting the foregoing, the Borrower will (a) observe, and cause the General
Partner and the Parent to observe, all requirements, procedures and formalities
necessary or advisable in order that the Borrower will for all purposes be
considered a validly existing partnership separate and distinct from the General
Partner, the Parent and their other subsidiaries, (b) not permit any commingling
of the assets of the General Partner, the Parent or any of their other
subsidiaries with assets of the Borrower or any Subsidiary which would prevent
the assets of the General Partner, the Parent or any of their subsidiaries from
being readily distinguished from the assets of the Borrower and its Subsidiaries
and (c) take reasonable and customary actions to ensure that creditors of the
General Partner, the Parent and their other subsidiaries are aware that each
such Person is an entity separate and distinct from the Borrower and its
Subsidiaries.
SECTION 8.13 FEDERAL RESERVE REGULATIONS. In the event the Borrower or any
Subsidiary shall use any proceeds of Loans to acquire or carry any Margin Stock,
the Borrower will not at any time thereafter permit more than 25% of the value
of the assets of the Borrower and its Subsidiaries subject to the provisions of
SECTION 10.2 or 10.5 to be Margin Stock.
SECTION 8.14 AVAILABLE CASH RESERVES. Maintain an amount of cash reserves
that is necessary or appropriate in the reasonable discretion of the Board of
Supervisors of the Borrower to (i) provide for the proper conduct of the
business of the Borrower and its Subsidiaries (including reserves for future
capital expenditures) subsequent to such quarter, (ii) comply with applicable
law or any loan agreement (including, but not limited to, this Agreement),
security agreement, mortgage, debt instrument or other agreement or obligation
to which the Borrower or any, Subsidiary is a party or by which it is bound or
its assets are subject and (iii) provide funds for distributions to partners of
the Parent and the General Partner in respect of any one or more of the next
four quarters; PROVIDED that disbursements made or cash reserves established,
increased or reduced after the end of any quarter but on or before the date of
determination of Available Cash with respect to such quarter shall be deemed to
have been made, established, increased or reduced for purposes of determining
Available Cash, within such quarter if the Board of Supervisors of the Company
so determines. In addition, without limitation or duplication of the foregoing,
Available Cash for any fiscal quarter shall reflect an amount of cash reserves
equal to the reserves required pursuant to the last paragraph of the definition
of "Available Cash".
SECTION 8.15 FURTHER ASSURANCES. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Administrative
Agent or any Lender may reasonably require to document and consummate the
transactions contemplated hereby and to vest completely in and insure the
Administrative Agent and the Lenders their respective rights under this
Agreement, the Notes and the other Loan Documents.
SECTION 8.16 COMMODITY HEDGING POLICY. The Borrower shall not amend the
Borrower's existing commodity hedging policy in any manner that increases the
risk exposure of the Borrower (including, without limitation, any increase of
the limits thereunder) without the prior written consent of the Required
Lenders, which consent shall not be unreasonably withheld.
ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been finally and indefeasibly paid and
satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in SECTION 13.11, the Borrower and its
Subsidiaries on a Consolidated basis will not:
SECTION 9.1 INTEREST COVERAGE RATIO. Permit the ratio of EBITDA to Interest
Expense as of the end of any fiscal quarter for the four-quarter-period ending
as of such date to be less than 2.50 to 1.00.
SECTION 9.2 LEVERAGE RATIO. Permit the Leverage Ratio as of the end of any
fiscal quarter to be greater than 5.00 to 1.00.
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been finally and indefeasibly paid and
satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in SECTION 14.11, the Borrower will not, and
will not cause or permit any of its Subsidiaries to:
SECTION 10.1 INDEBTEDNESS. Incur, create, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness for borrowed money existing on the date hereof in an
aggregate principal amount not in excess of $100,000;
(b) Indebtedness created hereunder and under the other Loan Documents;
(c) in the case of the Guarantors, the Guarantees under the Guarantee
Agreement and the Senior Note Agreement and any Refinancing Note Agreement;
(d) in the case of the Borrower, the Senior Notes and Refinancing Notes in
an aggregate principal amount not in excess of the aggregate principal amount of
the Senior Notes redeemed using the net proceeds of such Refinancing Notes;
PROVIDED that, notwithstanding anything to the contrary in this Agreement or any
other Loan Document, no Refinancing Notes shall be issued (and no Indebtedness
shall be incurred under any Refinancing Note Agreement) unless: (i) concurrently
with the issuance of any Refinancing Notes, Senior Notes in a principal amount
equal to the principal amount of such Refinancing Notes shall have been redeemed
and canceled, at a price not in excess of 100% of the principal amount thereof
(plus any premium in respect of such redemption to the extent paid with the
proceeds of the contemporaneous issuance of Common Units of the Parent), (ii)
the terms of the Refinancing Notes and the Refinancing Note Agreement shall be
reasonably satisfactory to the Required Lenders (PROVIDED, HOWEVER, that the
terms of the Refinancing Notes and the Refinancing Note Agreement shall be
deemed to be satisfactory to the Required Lenders if the Refinancing Notes are
issued with substantially the same terms as the Senior Notes (other than any
changes thereto that are not adverse in any respect to the interests of the
Lenders)), (iii) the interest rate of the Refinancing Notes shall be a fixed,
non-increasing interest rate per annum not in excess of the rate payable in
respect of the Senior Notes, payable on a principal amount of the Refinancing
Notes not in excess of the gross proceeds of the sale thereof and interest on
the Refinancing Notes shall be payable not more frequently than interest is
payable on the Senior Notes and (iv) the Refinancing Notes shall mature not
earlier than the maturity date of the Senior Notes and shall not have a shorter
weighted average maturity than the Senior Notes. Notwithstanding anything
contained in this SECTION 10.1(D) to the contrary, the Borrower may incur
Indebtedness in the form of Refinancing Notes the net proceeds of which are used
to refinance the Senior Note Payments; PROVIDED that (i) the aggregate principal
amount of such notes shall not exceed the principal amount of the Senior Note
Payments being refinanced thereby, (ii) such notes shall mature not earlier than
the date that is two years after the Termination Date, and (iii) such notes
would not violate the provisions of the Senior Note Agreement or any Refinancing
Note Agreement at the time in effect;
(e) [Intentionally Omitted]
(f) Indebtedness of the Borrower and its Subsidiaries for standby letters
of credit relating to obligations described in SECTIONS 10.1(H) AND (I), below,
in an aggregate amount at any time not to exceed $40,000,000, exclusive of any
standby Letters of Credit issued by the Issuing Lender pursuant to the terms of
this Agreement;
(g) Indebtedness of the Borrower or any Wholly-Owned Subsidiary to any
Subsidiary or the Borrower, as the case may be;
(h) Indebtedness of the Borrower and its Subsidiaries owed to any Person
providing worker's compensation, health, disability or other employee benefits
or property, casualty or liability insurance to the Borrower or any Subsidiary,
pursuant to reimbursement or indemnification obligations to such Person;
(i) Indebtedness of the Borrower or its Subsidiaries in respect of
performance bonds, bid bonds, appeal bonds, surety bonds and similar
obligations, in each case provided in the ordinary course of business, including
those incurred to secure health, safety and environmental obligations in the
ordinary course of business, and any extension, renewal or refinancing thereof
to the extent not provided to secure the repayment of other Indebtedness and to
the extent that the amount of refinancing Indebtedness is not greater than the
amount of Indebtedness being refinanced;
(j) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn against insufficient
funds in the ordinary course of business; PROVIDED that such Indebtedness is
extinguished within two (2) Business Days of its incurrence;
(k) Indebtedness of a Subsidiary acquired after the date hereof and
Indebtedness of a corporation merged or consolidated with or into the Borrower
or any Subsidiary after the date hereof, which Indebtedness in each case exists
at the time of such acquisition, merger, consolidation or conversion into a
Subsidiary and is not created in contemplation of such event and where such
acquisition, merger or consolidation is otherwise permitted by this Agreement;
PROVIDED that the aggregate principal amount of Indebtedness under this
paragraph (k) shall not at any time exceed $5,000,000;
(l) Indebtedness incurred, issued or assumed by the Borrower (i) to finance
the acquisitions, improvements or repairs (to the extent such improvements and
repairs may be capitalized on the books of the Borrower in accordance with GAAP)
of, or additions to, the property and assets of the Borrower, or (ii) to
replace, extend, renew, refund or refinance any such Indebtedness; PROVIDED
that:
(i) the aggregate principal amount of Indebtedness incurred in
connection with any such replacement, extension, renewal, refunding or
refinancing shall not exceed the outstanding principal amount of
Indebtedness so replaced, extended, renewed, refunded or refinanced;
(ii) the aggregate principal amount of Indebtedness incurred under
this clause (l) and outstanding at any time shall not exceed (A)
$25,000,000 PLUS (B) an amount equal to the aggregate net proceeds received
by the Borrower as consideration for the issuance by the Borrower of
additional partnership interests or as a capital contribution in each case
for the purpose of financing such acquisitions, improvements, repairs or
additions LESS (C) any amount of excess proceeds used to permanently reduce
the Commitments pursuant to SECTION 4.5;
(iii) such Indebtedness is secured by a Lien on the property or assets
so acquired, improved or repaired and does not include a negative pledge on
any other assets of the Borrower or its Subsidiaries;
(m) obligations described under clause (j) of the definition of
"Indebtedness" in an aggregate stated amount at any time outstanding, not in
excess of $5,000,000;
(n) obligations under Commodity Hedging Agreements respecting actual
volumes of propane inventory of the Borrower incurred in accordance with the
Borrower's commodity hedging policy, previously approved by the Lenders;
(o) Indebtedness incurred in connection with Hedging Agreements with a
counterparty and upon terms and conditions (including interest rate) reasonably
satisfactory to the Administrative Agent; PROVIDED that any counterparty that is
a Lender shall be deemed satisfactory to the Administrative Agent;
(p) Indebtedness incurred in connection with Swap Agreements (other than
Hedging Agreements permitted pursuant to SECTION 10.1(O)) in an aggregate amount
not to exceed $15,000,000 (valued at the termination value thereof computed in
accordance with a method approved by the International Swap Dealers Association
and agreed to by such Person in the applicable Swap Agreement, if any) on any
date of determination; and
(q) other unsecured Indebtedness of the Borrower in an aggregate principal
amount at any time outstanding not in excess of $5,000,000; PROVIDED, HOWEVER,
that no Indebtedness may be incurred, created, assumed or permitted to exist if
such insurance, creation, assumption or existence would violate the provisions
of the Senior Note Agreement or any Refinancing Note Agreement at the time in
effect.
SECTION 10.2 LIENS. Create, incur, assume or permit to exist any Lien on
any property or assets (including stock or other securities of any Person,
including any Subsidiary) now owned or hereafter acquired by it or any income or
revenues or rights in respect or any thereof, or sell or transfer any account
receivable or any right in respect thereof, except:
(a) Liens on property or assets of the Borrower existing on the date hereof
and set forth in SCHEDULE 10.2; PROVIDED that such Liens shall secure only those
obligations that they secure on the date hereof and shall not apply to any other
property or assets of the Borrower or any Subsidiary;
(b) any Lien arising as a result of a transaction permitted under SECTION
10.5(E).
(c) any Lien existing on any property or asset of the Borrower or any
Subsidiary prior to the acquisition thereof by the Borrower or any Subsidiary
securing Indebtedness permitted by SECTION 10.1(J); PROVIDED that (i) such Lien
is not created in contemplation of or in connection with such acquisition and
(ii) such Lien does not apply to any other property or asset of the Borrower or
any Subsidiary;
(d) Liens (other than any Lien imposed by ERISA) incurred and pledges and
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance, old-age pensions, retiree health benefits
and other social security benefits and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements in respect of such
obligations;
(e) Liens securing the performance of bids, tenders, leases, contracts
(other than for the repayment of borrowed money), statutory obligations surety,
customs and appeal bonds and other obligations of a like nature, incurred as an
incident to and in the ordinary course of business;
(f) Liens imposed by law, such as carriers', warehousemen's, mechanics',
materialmen's and vendors' liens, incurred in good faith in the ordinary course
of business and securing obligations which are not yet due or which are being
contested in good faith by appropriate proceedings as to which the Borrower or a
Subsidiary, as the case may be, shall have, to the extent required by GAAP, set
aside on its books adequate reserves;
(g) Liens securing the payment of taxes, assessments and governmental
charges or levies, either (i) not delinquent or (ii) being contested in good
faith by appropriate legal or administrative proceedings and as to which the
Borrower or a Subsidiary, as the case may be, shall have, to the extent required
by GAAP, set aside on its books adequate reserves;
(h) zoning restrictions, easements, licenses, reservations, provisions,
covenants, conditions, waivers, restrictions on the use of property or
irregularities of title (and with respect to leasehold interests, mortgages,
obligations, liens and other encumbrances incurred, created, assumed or
permitted to exist and arising by, through or under a landlord or owner of the
leased property, with or without consent of the lessee) which do not in the
aggregate materially detract from the value of its property or assets or
materially impair the use thereof in the operation of its business;
(i) Liens on the property or assets of any Subsidiary in favor of the
Borrower or any other Wholly-Owned Subsidiary;
(j) extensions, renewals and replacements of Liens referred to in
paragraphs (a) through (i) of this SECTION 10.2; PROVIDED that any such
extension, renewal or replacement Lien shall be limited to the property or
assets (or improvements thereon) covered by the Lien extended, renewed or
replaced and that the obligations secured by any such extension, renewal or
replacement Lien shall be in an amount not greater than the amount of the
obligations secured by the Lien extended, renewed or replaced;
(k) attachment or judgment Liens not giving rise to an Event of Default and
which are being contested in good faith by appropriate proceedings;
(l) leases or subleases of equipment to customers that do not materially
interfere with the conduct of the business of the Borrower and its Subsidiaries
taken as a whole;
(m) Liens consisting of interests of lessors under Capital Leases permitted
hereunder;
(n) any Lien created to secure all or any part of the purchase price, or to
secure Indebtedness incurred or assumed to pay all or any part of the purchase
price or cost of construction, of property acquired or constructed by the
Borrower or a Subsidiary after the date hereof; PROVIDED, that (i) any such Lien
shall be confined solely to the item or items of such property (or improvement
therein) so acquired or constructed and, if required by the terms of the
instrument creating such Lien, other property (or improvement thereon) which is
an improvement to such acquired or constructed property, (ii) any such Lien
shall be created contemporaneously with, or within ten (10) Business Days after,
the acquisition or construction of such property, and (iii) such Lien does not
exceed an amount equal to 85% (100% in the case of Capital Leases) of the fair
market value of such assets (as determined in good faith by the Board of
Supervisors of the Borrower) at the time of acquisition thereof;
(o) Liens securing Indebtedness permitted by SECTION 10.1(L); and
(p) Liens securing Indebtedness (including interests of lessors under
Capital Leases) permitted by SECTION 10.1, so long as immediately after giving
effect thereto, the aggregate amount of the Indebtedness secured by such Liens
shall not exceed 2.5% of Total Assets (as defined in the Senior Note Agreement).
Notwithstanding the foregoing, the Borrower will not, and will not permit any
Subsidiary to, create, assume or incur any Lien upon or with respect to any of
its proprietary software developed by or on behalf of the Borrower or its
Affiliates and necessary and useful for the conduct of the Business.
SECTION 10.3 SALE AND LEASE-BACK TRANSACTIONS. Enter into any arrangement,
directly or indirectly, with any Person whereby it shall sell or transfer any
property, real or personal used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred, in an aggregate amount not to exceed
$25,000,000; PROVIDED that the Designated Net Proceeds thereof shall be applied
as a prepayment of the Acquisition Loans and/or reduction of the Acquisition
Commitment as required pursuant to SECTION 4.2(D) and SECTION 4.5(B).
SECTION 10.4 INVESTMENTS, LOANS AND ADVANCES. Directly or indirectly
purchase or own any stock, obligations or securities of, or any other interest
in, or make any capital contribution to, any Person, or make or permit to remain
outstanding any loan or advance to, or guarantee, endorse or otherwise be or
become contingently liable, directly or indirectly, in connection with the
obligations of any Person, or make any other Investment, except:
(a) Investments (i) arising out of loans and advances to employees incurred
in the ordinary course of business, (ii) arising out of extensions of trade
credit or advances to third parties in the ordinary course of business and (iii)
acquired by reason of the exercise of customary creditors' rights upon default
or pursuant to the bankruptcy, insolvency or reorganization of a debtor;
(b) Guarantees that constitute Indebtedness to the extent permitted by
SECTIONS 9.2 AND 10.1 and other Guarantees that are not Guarantees of
Indebtedness and are undertaken in the ordinary course of business;
(c) Investments in (collectively, "CASH EQUIVALENTS")
(i) marketable obligations issued or unconditionally guaranteed by the
United States of America, or issued by any agency thereof and backed by the
full faith and credit of the United States of America, in each case
maturing within one year or less from the date of acquisition thereof;
(ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any
public instrumentality thereof maturing within one year from the date of
acquisition thereof and having as at such date the highest rating
obtainable from either Standard & Poor's Rating Group or ▇▇▇▇▇'▇ Investors
Service, Inc.;
(iii) commercial paper maturing no more than 270 days from the date of
creation thereof and having as at the date of acquisition thereof one of
the two highest ratings obtainable from either Standard & Poor's Rating
Group or ▇▇▇▇▇'▇ Investors Service, Inc.;
(iv) certificates of deposit maturing one year or less from the date
of acquisition thereof issued by commercial banks incorporated under the
laws of the United States of America or any state thereof or the District
of Columbia or Canada or issued by the United States branch of any
commercial bank organized under the laws of any country in Western Europe
or Japan, with capital and stockholders' equity of at least $500,000,000
(or the equivalent in the currency of such country), (A) the commercial
paper or other short term unsecured debt obligations of which are as at
such date rated either A-2 or better (or comparably if the rating system is
changed) by Standard & Poor's Rating Group or Prime-2 or better (or
comparably if the rating system is changed) by ▇▇▇▇▇'▇ Investors Service,
Inc. or (B) the long-term debt obligations of which are as at such date
rated either A or better (or comparably if the rating system is changed) by
Standard & Poor's Rating Group or A-2 or better (or comparably if the
rating system is changed) by ▇▇▇▇▇'▇ Investors Service, Inc. ("PERMITTED
BANKS");
(v) Eurodollar time deposits having a maturity of less than 270 days
from the date of acquisition thereof purchased directly from any Permitted
Bank;
(vi) bankers' acceptances eligible for rediscount under requirements
of The Board of Governors of the Federal Reserve System and accepted by
Permitted Banks;
(vii) to the extent permitted under the Senior Note Agreement, money
market funds having assets of not less than $500,000,000;
(viii) obligations of the type described in clauses (i), (ii), (iii),
(iv) or (v) above purchased from a securities dealer designated as a
"primary dealer" by the Federal Reserve Bank of New York or from a
Permitted Bank as counterparty to a written repurchase agreement obligating
such counterparty to repurchase such obligations not later than fourteen
(14) days after the purchase thereof and which provides that the
obligations which are the subject thereof are held for the benefit of the
Borrower or a Subsidiary by a custodian which is a Permitted Bank and which
is not a counterparty to the repurchase agreement in question;
(d) liabilities with respect to any Swap Agreements or Commodities Hedging
Agreements; and
(e) investments made by a Subsidiary in the Borrower.
SECTION 10.5 MERGERS, CONSOLIDATIONS, SALES OF ASSETS AND ACQUISITIONS.
Merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or sell, transfer, lease or otherwise dispose
of (in one transaction or in a series of transactions) all or any substantial
part of its assets (whether now owned or hereafter acquired), or purchase, lease
or otherwise acquire (in one transaction or a series of transactions) all or any
substantial part of the assets of, or any division or line of business of, any
other Person, except that this SECTION 10.5 shall not prohibit;
(a) the purchase and sale of inventory in the ordinary course of business
by the Borrower or any Subsidiary or the acquisition of facilities and equipment
in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no
Event of Default or Default shall have occurred and be continuing
(i) the merger of any Subsidiary into the Borrower in a transaction in
which the Borrower is the surviving Person, or the merger or consolidation
of any Subsidiary with and into any other Wholly-Owned domestic Subsidiary,
in each case in a transaction in which no Person other than the Borrower or
a Subsidiary receives any consideration; and
(ii) the merger of any other Person with and into the Borrower or a
Subsidiary if the Borrower or such Subsidiary is the surviving entity and
after giving effect to such transaction (A) the Consolidated Net Worth of
the Borrower and its Subsidiaries shall be not less than the Consolidated
Net Worth of the Borrower and its Subsidiaries immediate, prior to such
transaction, (B) substantially all the assets and business of the Borrower
and its Subsidiaries shall be located in the United States and (C) the
Borrower and its Subsidiaries shall be in compliance, on a pro forma basis
after giving effect to such transaction, with the covenants contained in
Article IX recomputed as of the last day of the most recently ended fiscal
quarter of the Borrower and its Subsidiaries as if such transaction had
occurred on the first day of each relevant period for testing such
compliance, and the Borrower shall have delivered to the Administrative
Agent an Officer's Compliance Certificate to such effect, together with all
relevant financial information and calculations demonstrating such
compliance;
(c) Permitted Business Acquisitions and other investments permitted by
SECTION 10.4;
(d) sales, leases or other dispositions of equipment or real property of
the Borrower or its Subsidiaries determined by the Board of Supervisors of the
Borrower or senior management of the Borrower to be no longer useful or
necessary in the operation of the business of the Borrower or its Subsidiaries;
PROVIDED that the Designated Net Proceeds shall be applied as a prepayment of
the Acquisition Loans and/or reduction of the Acquisition Commitment as required
pursuant to SECTION 4.2(D) and SECTION 4.5(B); and
(e) sales, leases or other dispositions of property for consideration
(i) at least 80% of which consists of cash and the remainder of which
consists of investments permitted under SECTION 10.4 or
(ii) consisting of cash and one or more Permitted Business
Acquisitions which the Board of Supervisors of the Borrower shall have
determined, as evidenced by a resolution thereof, have in the aggregate a
fair market value not less than the fair market value of the property being
sold, leased or otherwise disposed of; PROVIDED that the Designated Net
Proceeds shall be applied as a prepayment of the Acquisition Loans and/or
reduction of the Acquisition Commitment as required pursuant to SECTION
4.2(D) and SECTION 4.5(B); PROVIDED, FURTHER, that (A) no issuance of the
Capital Stock (or of any warrant, right or option to purchase or otherwise
acquire any such Capital Stock or any security convertible into or
exchangeable for any such Capital Stock) of any Subsidiary may be made to
any Person other than the Borrower or a Wholly-Owned domestic Subsidiary
except for the purpose of qualifying directors or in satisfaction of
pre-emptive rights of holders of minority interests which are triggered by
an issuance of Capital Stock to the Borrower or any Wholly-Owned domestic
Subsidiary and (B) no sale may be made of the Capital Stock (or of any
warrant, right or option to purchase or otherwise acquire any such Capital
Stock or any security convertible into or exchangeable for any such Capital
Stock) of any Subsidiary except in connection with a sale, transfer or
other disposition in which (1) simultaneously with such sale, transfer or
disposition, all the Capital Stock and Indebtedness of such Subsidiary at
the time owned by the Borrower and any other Subsidiary shall be sold,
transferred or disposed of as an entirety; (2) in the case of any such
transaction involving value of $1,000,000 or more, the Board of Supervisors
of the Borrower shall have determined, as evidenced by a resolution
thereof, that the proposed sale, transfer or disposition of such Capital
Stock and Indebtedness is in the best interests of the Borrower; (3) such
Capital Stock and Indebtedness are sold, transferred or otherwise disposed
of to a Person for cash or other consideration that would constitute an
investment permitted under SECTION 10.4 and, in the case of any such
transaction involving value of $1,000,000 or more, on terms reasonably
determined by the Board of Supervisors of the Borrower to be adequate and
satisfactory; (4) the Subsidiary being disposed of shall not have any
continuing investment in the Borrower or any other Subsidiary not being
simultaneously disposed of; and (5) such sale, transfer or other
disposition shall not otherwise be prohibited by this Agreement.
SECTION 10.6 RESTRICTED PAYMENTS. Directly or indirectly declare, order,
pay, make or set apart any sum for any Restricted Payment, except that:
(a) the Borrower may declare or order, and make, pay or set apart, once
during each fiscal quarter, a Restricted Payment in an amount not exceeding the
sum of an amount to be distributed by the Parent to its partners promptly upon
receipt from the Borrower PLUS an amount equal to the proportionate distribution
from the Borrower to the General Partner in respect of such distribution, and
(b) the Borrower may declare or order, and make, pay or set apart,
Restricted Payments to the General Partner and the Parent to fund the payment by
them of tax liabilities, legal, accounting and other professional fees and
expenses, compensation, fees and expenses of the Elected Supervisors of the
Parent (as defined in the Parent Partnership Agreement) and indemnification of
and contribution to all Persons entitled to indemnification or contribution
under SECTION 8.14 of the Parent Partnership Agreement (as in effect on the
Closing Date), any fees and expenses associated with registration statements
filed with the Securities and Exchange Commission and subsequent ongoing public
reporting requirements, and other liabilities, obligations or costs of the
General Partner or the Parent in each case to the extent actually incurred by
the General Partner or the Parent, as applicable, in connection with, arising
from, or relating to the Business or the Parent's ownership of Capital Stock of
the Borrower and its Subsidiaries;
PROVIDED that
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(i) the aggregate amount of Restricted Payments declared or ordered,
or made, paid, or set apart in any fiscal quarter shall not exceed
Available Cash for the immediately preceding fiscal quarter and
(ii) no Default or Event of Default then exists and is continuing, or
would be caused by such Restricted Payment, and the Borrower and it
Subsidiaries shall be in compliance, on a PRO FORMA basis, with the
covenants contained in Article IX recomputed as of the last day of the most
recently ended fiscal quarter of the Borrower and its Subsidiaries as if
such action had occurred on the first day of each relevant period for
testing such compliance, and the Borrower shall have delivered to the
Administrative Agent an officer's certificate in form and substance
satisfactory to the Administrative Agent to such effect on the date such
Restricted Payment is declared or ordered, together with all relevant
financial information and calculations demonstrating such compliance.
The Borrower will comply with the reserve provisions required under the
definition of Available Cash. The Borrower will not, in any event, directly
or indirectly declare, order, pay or make any Restricted Payment except in
cash. The Borrower will not permit any Subsidiary to declare, order, pay or
make any Restricted Payment or to set apart any sum or property for any
such purpose other than to (i) the Borrower or any Wholly-Owned Subsidiary
and (ii) so long as no Default or Event of Default shall have occurred and
be continuing or would be caused thereby, all holders of Capital Stock of
or other equity interests in such Subsidiary on a pro rata basis.
SECTION 10.7 TRANSACTIONS WITH AFFILIATES. Sell or transfer any assets to,
or purchase or acquire any assets from, or otherwise engage in any material
transaction with, any Affiliate except upon fair and reasonable terms no less
favorable to the Borrower or any Subsidiary than those that would prevail in an
arm's-length transaction with a Person which was not an Affiliate and in a
transaction entered into in the ordinary course of business and pursuant to the
reasonable requirements at the time of the Borrower or such Subsidiary; PROVIDED
that this SECTION 10.7 shall not apply to (a) Restricted Payments permitted
under SECTION 10.6, (b) indemnification of and contribution to all Persons
entitled to indemnification or contribution under SECTION 7.14 of the Borrower
Partnership Agreement (as in effect on the Closing Date) to the extent such
indemnification or contribution arises from business or activities in connection
with the Business (including securities issuances in connection with funding the
Business) or (c) transactions between the Borrower and any Wholly-Owned domestic
Subsidiary, or between Wholly-Owned domestic Subsidiaries or between
Wholly-Owned foreign Subsidiaries.
SECTION 10.8 BUSINESS OF BORROWER AND SUBSIDIARIES. Engage at any time in
any business or business activity other than the business currently conducted by
it and business activities reasonably incidental thereto, except to the extent
resulting from any acquisition permitted under SECTION 10.5.
SECTION 10.9 MATERIAL AGREEMENTS; TAX STATUS.
(a) (i) Directly or indirectly, make any payment, retirement, repurchase or
redemption on account of the principal of or directly or indirectly prepay or
defease any Indebtedness prior to the stated maturity date of such Indebtedness
(other than Indebtedness under the Loan Documents, Senior Notes redeemed with
the proceeds of Refinancing Notes or as required under Section 4C of the Senior
Note Agreement as in effect on the Closing Date or any analogous provision under
any Refinancing Note Agreement to the extent there is no increase in the amount
required to be redeemed), (ii) make any payment or prepayment of any such
Indebtedness that would violate the terms of this Agreement or of such
Indebtedness, any agreement or document evidencing, related to or securing the
payment or performance of such Indebtedness or any subordination agreement or
provision applicable to such Indebtedness or (iii) pay in cash any amount in
respect of any Indebtedness that may at the Borrower's option be paid in kind.
(b) Amend or modify in any manner adverse to the Lenders, or grant any
waiver or release under (if such action shall be adverse to the Lenders), any
Partnership Document, the Senior Notes, the Senior Note Agreement, any
Refinancing Notes or any Refinancing Note Agreement or terminate in any manner
any Partnership Document, it being understood, without limitation, that no
modification that reduces principal, interest or fees, premiums, make-wholes or
penalty charges, or extends any scheduled or mandatory payment, prepayment or
redemption of principal or interest, or makes less restrictive any agreement or
waives any condition precedent or default, or entails the incurrence of
additional Indebtedness by the Borrower under the Senior Notes, the Senior Note
Agreement, any Refinancing Notes or any Refinancing Note Agreement shall be
adverse to the Lenders for purposes of this Agreement; PROVIDED, that with
respect to the incurrence of additional Indebtedness, subsequent to such
additional Indebtedness, the Borrower shall remain in compliance with SECTIONS
9.1, 9.2, 9.3 AND 10.11 and such additional Indebtedness shall be on terms and
conditions no more restrictive than the terms and conditions contained in the
Senior Note Agreement.
(c) Permit any Subsidiary to enter into any agreement or instrument that by
its terms restricts the payment of dividends or the making of cash advances by
such Subsidiary to the Borrower or any Subsidiary that is a direct or indirect
parent of such Subsidiary, other than those set forth in the Loan Documents.
(d) Permit the Parent or the Borrower to be treated as an association
taxable as a corporation or otherwise to be taxed as an entity for Federal
income tax purposes.
SECTION 10.10 LEASE OBLIGATIONS. Permit the aggregate obligations that are
due and payable during any fiscal year of the Borrower and its Subsidiaries
under leases (other than obligations under Capital Leases) to exceed $30,000,000
during such fiscal year.
SECTION 10.11 PRIORITY INDEBTEDNESS. The Borrower will not permit Priority
Indebtedness (as defined in the Senior Note Agreement) at any time to exceed 25%
of Consolidated Net Worth (as defined in the Senior Note Agreement).
SECTION 10.12 CERTAIN ACCOUNTING CHANGES. Change its Fiscal Year end, or
make any change in its accounting treatment and reporting practices except as
required by GAAP.
SECTION 10.13 RESTRICTIVE AGREEMENTS. Enter into any Indebtedness which
contains any covenants (including, without limitation, a negative pledge on
assets) more restrictive than the provisions of Articles VIII, IX and X.
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 EVENTS OF DEFAULT. Each of the following shall constitute an
Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) DEFAULT IN PAYMENT OF PRINCIPAL OF LOANS AND REIMBURSEMENT OBLIGATIONS.
The Borrower shall default in any payment of principal of any Loan, Note or
Reimbursement Obligation when and as due (whether at maturity, by reason of
acceleration or otherwise).
(b) OTHER PAYMENT DEFAULT. The Borrower shall default in the payment when
and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan, Note or Reimbursement Obligation or the payment of any
other Obligation, and such default shall continue unremedied for three (3)
Business Days.
(c) MISREPRESENTATION. Any representation or warranty made or deemed to be
made by the Borrower or any of its Subsidiaries under this Agreement, any Loan
Document or any amendment hereto or thereto, shall prove to have been incorrect
or misleading in any material respect when made or deemed made.
(d) DEFAULT IN PERFORMANCE OF CERTAIN COVENANTS. The Borrower shall default
in the performance or observance of any covenant or agreement contained in
SECTION 7.1, 7.2, 7.4(E) or Articles IX or X of this Agreement.
(e) DEFAULT IN PERFORMANCE OF OTHER COVENANTS AND CONDITIONS. The Borrower
or any Subsidiary thereof shall default in the performance or observance of any
term, covenant, condition or agreement contained in this Agreement (other than
as specifically provided for otherwise in this SECTION 11.1) or any other Loan
Document and such default shall continue for a period of thirty (30) days after
written notice thereof has been given to the Borrower by the Administrative
Agent.
(f) INDEBTEDNESS CROSS-DEFAULT. The Borrower or any of its Subsidiaries
shall (i) default in the payment of any Indebtedness (other than that evidenced
by the Notes or any Reimbursement Obligation; but including, without limitation,
the Indebtedness evidenced by the Senior Notes or any Refinancing Notes), the
aggregate outstanding amount of which Indebtedness is in excess of $10,000,000
beyond the period of grace if any, provided in the instrument or agreement under
which such Indebtedness was created, or (ii) default in the observance or
performance of any other agreement or condition relating to any Indebtedness
(other than that evidenced by the Notes or any Reimbursement Obligation; but
including, without limitation, the Indebtedness evidenced by the Senior Notes or
any Refinancing Notes) the aggregate outstanding amount of which Indebtedness is
in excess of $10,000,000 or contained in any instrument or agreement evidencing,
securing or relating thereto or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause, with the giving of notice if
required, any such Indebtedness to become due prior to its stated maturity (any
applicable grace period having expired).
(g) OTHER CROSS-DEFAULTS. The Borrower or any of its Subsidiaries shall
default in the payment when due, or in the performance or observance, of any
obligation or condition of any material contract or agreement unless, but only
as long as, the existence of any such default is being contested by the Borrower
or such Subsidiary in good faith by appropriate proceedings and adequate
reserves in respect thereof have been established on the books of the Borrower
or such Subsidiary to the extent required by GAAP.
(h) CHANGE IN OWNERSHIP. A Change in Ownership shall occur.
(i) VOLUNTARY BANKRUPTCY PROCEEDING. The Borrower or any Subsidiary thereof
shall (i) commence a voluntary case under the federal bankruptcy laws (as now or
hereafter in effect), (ii) file a petition seeking to take advantage of any
other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts, (iii) consent
to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (iv)
apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, or liquidator of itself or of a substantial part of its property,
domestic or foreign, (v) admit in writing its inability to pay its debts as they
become due, (vi) make a general assignment for the benefit of creditors, or
(vii) take any corporate action for the purpose of authorizing any of the
foregoing.
(j) INVOLUNTARY BANKRUPTCY PROCEEDING. A case or other proceeding shall be
commenced against the Borrower or any Subsidiary thereof in any court of
competent jurisdiction seeking (i) relief under the federal bankruptcy laws (as
now or hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or adjustment of
debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or
the like for the Borrower or any Subsidiary thereof or for all or any
substantial part of their respective assets, domestic or foreign, and such case
or proceeding shall continue undismissed or unstayed for a period of sixty (60)
consecutive days, or an order granting the relief requested in such case or
proceeding (including, but not limited to, an order for relief under such
federal bankruptcy laws) shall be entered.
(k) FAILURE OF AGREEMENTS. Any provision of this Agreement or any provision
of any other Loan Document shall for any reason cease to be valid and binding on
the Borrower or any Subsidiary party thereto or any such Person shall so state
in writing, other than in accordance with the express terms hereof or thereof.
(l) ERISA EVENT. The occurrence of any ERISA Event that, when taken
together with all other ERISA Events that have occurred, results in or could
reasonably be expected to result in liability of the Borrower and its ERISA
Affiliates in an aggregate amount exceeding $10,000,000.
(m) JUDGMENT. A judgment or order for the payment of money which causes the
aggregate amount of all such judgments to exceed $10,000,000 in any Fiscal Year
shall be entered against the Borrower or any of its Subsidiaries by any court
and such judgment or order shall continue undischarged or unstayed for a period
of thirty (30) days.
SECTION 11.2 REMEDIES. Upon the occurrence of an Event of Default, with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower:
(a) ACCELERATION; TERMINATION OF CREDIT FACILITIES. Declare the principal
of and interest on the Loans, the Notes and the Reimbursement Obligations at the
time outstanding, and all other amounts owed to the Lenders and to the
Administrative Agent under this Agreement or any of the other Loan Documents
(including, without limitation, all L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder) and all other Obligations (other than Swap
Obligations), to be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment, demand, protest or other
notice of any kind, all of which are expressly waived, anything in this
Agreement or the other Loan Documents to the contrary notwithstanding, and
terminate the Credit Facilities and any right of the Borrower to request
borrowings or Letters of Credit thereunder; PROVIDED, that upon the occurrence
of an Event of Default specified in SECTION 11.1(I) or (J), the Credit
Facilities shall be automatically terminated and all Obligations (other than
Swap Obligations) shall automatically become due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived, anything in this Agreement or in any other Loan Document to
the contrary notwithstanding.
(b) LETTERS OF CREDIT. With respect to all Letters of Credit with respect
to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to SECTION 11.2(A), require the Borrower at such time to
deposit in a cash collateral account with the Administrative Agent an amount
equal to the aggregate then undrawn and unexpired amount of such Letters of
Credit. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay the
other Obligations. After all such Letters of Credit shall have expired or been
fully drawn upon, the Reimbursement Obligation shall have been satisfied and all
other Obligations shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Borrower.
(c) RIGHTS OF COLLECTION. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrower's Obligations.
SECTION 11.3 RIGHTS AND REMEDIES CUMULATIVE; NON-WAIVER; ETC. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of the Administrative Agent or any Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between the Borrower, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1 APPOINTMENT. Each of the Lenders hereby irrevocably designates
and appoints Wachovia as Administrative Agent of such Lender under this
Agreement and the other Loan Documents for the term hereof and each such Lender
irrevocably authorizes Wachovia as Administrative Agent for such Lender, to take
such action on its behalf under the provisions of this Agreement and the other
Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and such other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement or such other Loan Documents, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein and
therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or the other Loan Documents or otherwise exist
against the Administrative Agent. Any reference to the Administrative Agent in
this Article XII shall be deemed to refer to the Administrative Agent solely in
its capacity as Administrative Agent and not in its capacity as a Lender.
SECTION 12.2 DELEGATION OF DUTIES. The Administrative Agent may execute any
of its respective duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by the Administrative Agent with reasonable care.
SECTION 12.3 EXCULPATORY PROVISIONS. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or the other Loan Documents (except for actions occasioned solely by
its or such Person's own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any of its Subsidiaries or
any officer thereof contained in this Agreement or the other Loan Documents or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with,
this Agreement or the other Loan Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
the other Loan Documents or for any failure of the Borrower or any of its
Subsidiaries to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Borrower or any of its Subsidiaries.
SECTION 12.4 RELIANCE BY THE ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless such Note shall have been
transferred in accordance with SECTION 13.10. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
and the other Loan Documents unless it shall first receive such advice or
concurrence of the Required Lenders (or, when expressly required hereby or by
the relevant other Loan Document, all the Lenders) as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action except for its own gross negligence or
willful misconduct. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
Notes in accordance with a request of the Required Lenders (or, when expressly
required hereby, all the Lenders), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
SECTION 12.5 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless it has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, it shall promptly give notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders (or, when expressly required hereby, all the Lenders);
PROVIDED that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders, except to the extent that other provisions of this Agreement expressly
require that any such action be taken or not be taken only with the consent and
authorization or the request of the Lenders or Required Lenders, as applicable.
SECTION 12.6 NON-RELIANCE ON THE ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its respective officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates has made any representations or warranties to it and
that no act by the Administrative Agent hereinafter taken, including any review
of the affairs of the Borrower or any of its Subsidiaries, shall be deemed to
constitute any representation or warranty by the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and its Subsidiaries and made its own decision to make its Loans and
issue or participate in Letter of Credit hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and its Subsidiaries. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder or by the other Loan Documents, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, financial and other
condition or creditworthiness of the Borrower or any of its Subsidiaries which
may come into the possession of the Administrative Agent or any of its
respective officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates.
SECTION 12.7 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent in its capacity as such and (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to the respective amounts of their Commitment Percentages,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes or any Reimbursement Obligation) be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or the other Loan Documents, or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; PROVIDED
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's bad faith, gross negligence or willful misconduct. The agreements in
this SECTION 12.7 shall survive the payment of the Notes, any Reimbursement
Obligation and all other amounts payable hereunder and the termination of this
Agreement.
SECTION 12.8 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
Administrative Agent and its respective Subsidiaries and Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Borrower as though the Administrative Agent were not an Administrative Agent
hereunder. With respect to any Loans made or renewed by it and any Note issued
to it and with respect to any Letter of Credit issued by it or participated in
by it, the Administrative Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it were not an Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
SECTION 12.9 RESIGNATION OF THE ADMINISTRATIVE AGENT; SUCCESSOR
ADMINISTRATIVE AGENT. Subject to the appointment and acceptance of a successor
as provided below, the Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, which successor shall have minimum capital and surplus of at least
$500,000,000. If no successor Administrative Agent shall have been so appointed
by the Required Lenders and shall have accepted such appointment within thirty
(30) days after the Administrative Agent's giving of notice of resignation, then
the Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which successor shall have minimum capital and surplus of
at least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this SECTION 12.9 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
SECTION 12.10 OTHER AGENTS; ARRANGERS. None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement as a
"syndication agent," "documentation agent," "managing agent," "co-agent" or
"lead arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or
other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 NOTICES.
(a) METHOD OF COMMUNICATION. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) ADDRESSES FOR NOTICES. Notices to any party shall be sent to it at the
following addresses, or any other address as to which all the other parties are
notified in writing.
If to the Borrower: Suburban Propane, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇ West
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: A. ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
With copies to: Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
If to Wachovia as Wachovia Bank, National Association
Administrative Agent: Charlotte Plaza, CP-8
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication Agency Services
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
Hearst Tower, 47th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: 704-331-7598
If to any Lender: To the Address set forth on
SCHEDULE 1.1(A) HERETO.
----------------------
(c) ADMINISTRATIVE AGENT'S OFFICE. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrower and Lenders, as the Administrative Agent's Office referred to herein,
to which payments due are to be made and at which Loans will be disbursed and
Letters of Credit issued.
SECTION 13.2 EXPENSES; INDEMNITY. The Borrower will (a) pay all
out-of-pocket expenses of the Administrative Agent in connection with: (i) the
preparation, execution and delivery of this Agreement and each other Loan
Document, whenever the same shall be executed and delivered, including without
limitation all out-of-pocket syndication and due diligence expenses and
reasonable fees and disbursements of counsel for the Administrative Agent and
(ii) the preparation, execution and delivery of any waiver, amendment or consent
by the Administrative Agent or the Lenders relating to this Agreement or any
other Loan Document, including without limitation reasonable fees and
disbursements of counsel for the Administrative Agent, (b) pay all out-of-pocket
expenses of the Administrative Agent and the Lenders in connection with the
administration and enforcement of any rights and remedies of the Administrative
Agent and Lenders under the Credit Facilities, including consulting with
appraisers, accountants, engineers, attorneys and other Persons concerning the
nature, scope or value of any right or remedy of the Administrative Agent or any
Lender hereunder or under any other Loan Document or any factual matters in
connection therewith, which expenses shall include without limitation the
reasonable fees and disbursements of such Persons, and (c) defend, indemnify and
hold harmless the Administrative Agent and the Lenders, and their respective
parents, Subsidiaries, Affiliates, employees, agents, officers and directors,
from and against any losses, penalties, fines, liabilities, settlements,
damages, costs and expenses, suffered by any such Person in connection with any
claim, investigation, litigation or other proceeding (whether or not the
Administrative Agent or any Lender is a party thereto) and the prosecution and
defense thereof, arising out of or in any way connected with the Agreement, any
other Loan Document or the Loans, including without limitation reasonable
attorney's and consultant's fees, except to the extent that any of the foregoing
directly result from the gross negligence or willful misconduct of the party
seeking indemnification therefor.
SECTION 13.3 SET-OFF. In addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, upon and
after the occurrence of any Event of Default and during the continuance thereof,
the Lenders and any assignee or participant of a Lender in accordance with
SECTION 13.10 are hereby authorized by the Borrower at any time or from time to
time, without notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits (general or special, time or demand, including, but not limited
to, indebtedness evidenced by certificates of deposit, whether matured or
unmatured) and any other indebtedness at any time held or owing by the Lenders,
or any such assignee or participant to or for the credit or the account of the
Borrower against and on account of the Obligations irrespective of whether or
not (a) the Lenders shall have made any demand under this Agreement or any of
the other Loan Documents or (b) the Administrative Agent shall have declared any
or all of the Obligations to be due and payable as permitted by SECTION 11.2 and
although such Obligations shall be contingent or unmatured. Notwithstanding the
preceding sentence, each Lender agrees to notify the Borrower and the
Administrative Agent after any such set-off and application; PROVIDED, that the
failure to give such notice shall not affect the validity of such set-off and
application.
SECTION 13.4 GOVERNING LAW. This Agreement, the Notes and the other Loan
Documents, unless otherwise expressly set forth therein, shall be governed by,
construed and enforced in accordance with the laws of the State of New York.
SECTION 13.5 CONSENT TO JURISDICTION. The Borrower hereby irrevocably
consents to the personal jurisdiction of the state and federal courts located in
New York County, New York, in any action, claim or other proceeding arising out
of any dispute in connection with this Agreement, the Notes and the other Loan
Documents, any rights or obligations hereunder or thereunder, or the performance
of such rights and obligations. The Borrower hereby irrevocably consents to the
service of a summons and complaint and other process in any action, claim or
proceeding brought by the Administrative Agent or any Lender in connection with
this Agreement, the Notes or the other Loan Documents, any rights or obligations
hereunder or thereunder, or the performance of such rights and obligations, on
behalf of itself or its property, in the manner specified in SECTION 13.1.
Nothing in this SECTION 13.5 shall affect the right of the Administrative Agent
or any Lender to serve legal process in any other manner permitted by Applicable
Law or affect the right of the Administrative Agent or any Lender to bring any
action or proceeding against the Borrower or its properties in the courts of any
other jurisdictions.
SECTION 13.6 WAIVER OF JURY TRIAL. THE ADMINISTRATIVE AGENT, EACH LENDER
AND THE BORROWER HEREBY IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF ANY
JUDICIAL PROCEEDING, ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF, CONNECTED
WITH OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT ("DISPUTES") IN
CONNECTION WITH THIS AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS
AND OBLIGATIONS.
SECTION 13.7 REVERSAL OF PAYMENTS. To the extent the Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
SECTION 13.8 INJUNCTIVE RELIEF; PUNITIVE DAMAGES.
(a) The Borrower recognizes that, in the event the Borrower fails to
perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrower agrees that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Administrative Agent, the Lenders and the Borrower (on behalf of
itself and its Subsidiaries) hereby agree that no such Person shall have a
remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any Dispute.
(c) The parties agree that they shall not have a remedy of punitive or
exemplary damages against any other party in any Dispute and hereby waive any
right or claim to punitive or exemplary damages they have now or which may arise
in the future in connection with any Dispute.
SECTION 13.9 ACCOUNTING MATTERS. All financial and accounting calculations,
measurements and computations made for any purpose relating to this Agreement,
including, without limitation, all computations utilized by the Borrower or any
Subsidiary thereof to determine compliance with any covenant contained herein,
shall, except as otherwise expressly contemplated hereby or unless there is an
express written direction by the Administrative Agent to the contrary agreed to
by the Borrower, be performed in accordance with GAAP as in effect on the
Closing Date. In the event that changes in GAAP shall be mandated by the
Financial Accounting Standards Board, or any similar accounting body of
comparable standing, or shall be recommended by the Borrower's certified public
accountants, to the extent that such changes would modify such accounting terms
or the interpretation or computation thereof, such changes shall be followed in
defining such accounting terms only from and after the date the Borrower and the
Required Lenders shall have amended this Agreement to the extent necessary to
reflect any such changes in the financial covenants and other terms and
conditions of this Agreement.
SECTION 13.10 SUCCESSORS AND ASSIGNS; PARTICIPATIONS.
(a) BENEFIT OF AGREEMENT. This Agreement shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent and the Lenders, all
future holders of the Notes, and their respective successors and assigns, except
that the Borrower shall not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of each Lender.
(b) ASSIGNMENT BY LENDERS. Each Lender may, with the consent of the
Administrative Agent and the Borrower, which consents shall not be unreasonably
withheld and not required of the Borrower upon the occurrence and continuation
of a Default or Event of Default, assign to one or more Eligible Assignees all
or a portion of its interests, rights and obligations under this Agreement and
the other Loan Documents (including, without limitation, all or a portion of the
Extensions of Credit at the time owing to it and the Notes held by it); PROVIDED
that:
(i) each such assignment shall be of a constant, and not a varying,
percentage of all the assigning Lender's rights and obligations under this
Agreement;
(ii) if less than all of the assigning Lender's Commitment is to be
assigned, the Commitment so assigned shall not be less than $5,000,000;
(iii) the parties to each such assignment shall execute and deliver to
the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance in the form of EXHIBIT G attached hereto (an
"ASSIGNMENT AND ACCEPTANCE"), together with any Note or Notes subject to
such assignment;
(iv) such assignment shall not, without the consent of the Borrower,
require the Borrower to file a registration statement with the Securities
and Exchange Commission or apply to or qualify the Loans or the Notes under
the blue sky laws of any state;
(v) no consent of the Borrower or the Administrative Agent shall be
required for an assignment to an Affiliate or Subsidiary of the assigning
Lender; and
(vi) the assigning Lender shall pay to the Administrative Agent an
assignment fee of $3,000 upon the execution by such Lender of the
Assignment and Acceptance; PROVIDED that no such fee shall be payable upon
any assignment by a Lender to an Affiliate thereof or upon any increase in
the Acquisition Commitment in accordance with SECTION 2.5 which does not
involve a new Lender.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective
date shall be at least five (5) Business Days after the execution thereof,
(A) the assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and obligations
of a Lender hereby and (B) the Lender thereunder shall, to the extent
provided in such assignment, be released from its obligations under this
Agreement.
(c) RIGHTS AND DUTIES UPON ASSIGNMENT. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
set forth in such Assignment and Acceptance.
(d) REGISTER. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amount of the Extensions of
Credit with respect to each Lender from time to time (the "REGISTER"). The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
or Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) ISSUANCE OF NEW NOTES. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Eligible Assignee together
with any Note or Notes subject to such assignment and the written consent to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of EXHIBIT G:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the Register;
(iii) give prompt notice thereof to the Lenders and the Borrower; and
(iv) promptly deliver a copy of such Assignment and Acceptance to the
Borrower.
Within five (5) Business Days after receipt of notice, the Borrower shall
execute and deliver to the Administrative Agent, in exchange for the
surrendered Note or Notes, a new Note or Notes to the order of such
Eligible Assignee in amounts equal to the Commitment assumed by it pursuant
to such Assignment and Acceptance and a new Note or Notes to the order of
the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes,
shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of the assigned Notes
delivered to the assigning Lender. Each surrendered Note or Notes shall be
canceled and returned to the Borrower.
(f) PARTICIPATIONS. Each Lender may sell participations to one or more
banks or other entities in all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Extensions of Credit and the Notes held by it); PROVIDED that:
(i) each such participation shall be in an amount not less than
$5,000,000;
(ii) such Lender's obligations under this Agreement (including,
without limitation, its Commitment) shall remain unchanged;
(iii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations;
(iv) such Lender shall remain the holder of the Notes held by it for
all purposes of this Agreement;
(v) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement;
(vi) such Lender shall not permit such participant the right to
approve any waivers, amendments or other modifications to this Agreement or
any other Loan Document other than waivers, amendments or modifications
which would reduce the principal of or the interest rate on any Loan or
Reimbursement Obligation, extend the term or increase the amount of the
Commitment, reduce the amount of any fees to which such participant is
entitled, extend any scheduled payment date for principal of any Loan or,
except as expressly contemplated hereby or thereby, release substantially
all of the Collateral; and
(vii) any such disposition shall not, without the consent of the
Borrower, require the Borrower to file a registration statement with the
Securities and Exchange Commission to apply to qualify the Loans or the
Notes under the blue sky law of any state.
(g) DISCLOSURE OF INFORMATION; CONFIDENTIALITY. The Administrative Agent
and the Lenders shall hold all non-public information with respect to the
Borrower obtained pursuant to the Loan Documents in accordance with their
customary procedures for handling confidential information; provided, that the
Administrative Agent may disclose information relating to this Agreement to Gold
Sheets and other similar bank trade publications, such information to consist of
deal terms and other information customarily found in such publications and
provided further, that the Administrative Agent and Lenders may disclose any
such information to the extent such disclosure is required by law or requested
by any regulatory authority. Any Lender may, in connection with any assignment,
proposed assignment, participation or proposed participation pursuant to this
SECTION 13.10, disclose to the assignee, participant, proposed assignee or
proposed participant, any information relating to the Borrower furnished to such
Lender by or on behalf of the Borrower; PROVIDED, that prior to any such
disclosure, each such assignee, proposed assignee, participant or proposed
participant shall agree with the Borrower or such Lender to preserve the
confidentiality of any confidential information relating to the Borrower
received from such Lender.
(h) CERTAIN PLEDGES OR ASSIGNMENTS. Nothing herein shall prohibit any
Lender from pledging or assigning any Note to any Federal Reserve Bank in
accordance with Applicable Law.
SECTION 13.11 AMENDMENTS, WAIVERS AND CONSENTS. Except as set forth below
or as specifically provided in any Loan Document (including, without limitation,
SECTION 2.5), any term, covenant, agreement or condition of this Agreement or
any of the other Loan Documents may be amended or waived by the Lenders, and any
consent given by the Lenders, if, but only if, such amendment, waiver or consent
is in writing signed by the Required Lenders (or by the Administrative Agent
with the consent of the Required Lenders) and delivered to the Administrative
Agent and, in the case of an amendment, signed by the Borrower; PROVIDED that,
except as specifically set forth in SECTION 2.5, no amendment, waiver or consent
shall (a) increase the amount or extend the time of the obligation of the
Lenders to make Loans or issue or participate in Letters of Credit (including
without limitation pursuant to SECTION 3.5), (b) reduce or forgive the principal
amount of any Loan or Reimbursement Obligation, (c) extend the originally
scheduled time or times of payment of the principal of any Loan or Reimbursement
Obligation or the time or times of payment of interest on any Loan, (d) reduce
the rate of interest or fees payable on any Loan or Reimbursement Obligation or
any fee or commission with respect thereto, (e) permit any subordination of the
principal or interest on any Loan or Reimbursement Obligation, (f) permit any
assignment (other than as specifically permitted or contemplated in this
Agreement) of any of the Borrower's rights and obligations hereunder, (g)
terminate or cancel any Guarantee Agreement or release any Guarantor from its
obligations under a Guarantee Agreement or (h) amend the provisions of SECTION
13.10(A), this SECTION 13.11 or the definition of Required Lenders, without the
prior written consent of each Lender. In addition, no amendment, waiver or
consent to the provisions of (a) Article XII shall be made without the written
consent of the Administrative Agent and (b) Article III without the written
consent of the Issuing Lender.
SECTION 13.12 PERFORMANCE OF DUTIES. The Borrower's obligations under this
Agreement and each of the Loan Documents shall be performed by the Borrower at
its sole cost and expense.
SECTION 13.13 ALL POWERS COUPLED WITH INTEREST. All powers of attorney and
other authorizations granted to the Lenders, the Administrative Agent and any
Persons designated by the Administrative Agent or any Lender pursuant to any
provisions of this Agreement or any of the other Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied or the Credit Facilities have not been
terminated.
SECTION 13.14 SURVIVAL OF INDEMNITIES. Notwithstanding any termination of
this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article XIII and any other
provision of this Agreement and the Loan Documents shall continue in full force
and effect and shall protect the Administrative Agent and the Lenders against
events arising after such termination as well as before.
SECTION 13.15 TITLES AND CAPTIONS. Titles and captions of Articles,
Sections and subsections in, and the table of contents of, this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 13.16 SEVERABILITY OF PROVISIONS. Any provision of this Agreement
or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 13.17 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and shall be binding
upon all parties, their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
SECTION 13.18 TERM OF AGREEMENT. This Agreement shall remain in effect from
the Closing Date through and including the date upon which all Obligations shall
have been indefeasibly and irrevocably paid and satisfied in full. No
termination of this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination or in respect of any provision
of this Agreement which survives such termination.
SECTION 13.19 INCONSISTENCIES WITH OTHER DOCUMENTS; INDEPENDENT EFFECT OF
COVENANTS.
(a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement shall
control.
(b) The Borrower expressly acknowledges and agrees that each covenant
contained in Articles VIII, IX or X shall be given independent effect.
Accordingly, the Borrower shall not engage in any transaction or other act
otherwise permitted under any covenant contained in Articles VIII, IX or X if,
before or after giving effect to such transaction or act, the Borrower shall or
would be in breach of any other covenant contained in Articles VIII, IX or X.
SECTION 13.20 ENTIRE AGREEMENT. This Agreement and the other Loan Documents
represent the final agreement between the parties and may not be contradicted by
evidence of prior, contemporaneous, or subsequent oral agreements of the
parties. There are no unwritten oral agreements between the parties.
[Signature pages to follow]
[Suburban Propane, L.P. Second Amended and Restated Credit Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, all as of the day and year first
written above.
SUBURBAN PROPANE, L.P., as Borrower
By: /S/ A. ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
-----------------------------
Name: A. ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
Title: Treasurer
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent, as Lender,
as Swingline Lender and as Issuing Lender
By:
-----------------------------
Name:
---------------------
Title:
--------------------
FLEET NATIONAL BANK,
as Syndication Agent and as Lender
By:
-----------------------------
Name:
---------------------
Title:
--------------------
[OTHER LENDERS - see Doc #2147868]
By:
-----------------------------
Name:
---------------------
Title:
--------------------
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS................................................. 1
SECTION 1.1 DEFINITIONS........................................ 1
SECTION 1.2 GENERAL............................................ 19
SECTION 1.3 OTHER DEFINITIONS AND PROVISIONS................... 20
ARTICLE II THE CREDIT FACILITIES....................................... 20
SECTION 2.1 REVOLVING CREDIT LOANS............................. 20
SECTION 2.2 SWINGLINE LOANS.................................... 21
SECTION 2.3 [Intentionally Omitted]............................ 22
SECTION 2.4 ACQUISITION LOANS.................................. 22
SECTION 2.5 INCREASE OF ACQUISITION COMMITMENT................. 23
ARTICLE III LETTER OF CREDIT FACILITY................................... 24
SECTION 3.1 L/C COMMITMENT..................................... 24
SECTION 3.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT........ 24
SECTION 3.3 COMMISSIONS AND OTHER CHARGES...................... 25
SECTION 3.4 L/C PARTICIPATIONS................................. 25
SECTION 3.5 REIMBURSEMENT OBLIGATION OF THE BORROWER........... 26
SECTION 3.6 OBLIGATIONS ABSOLUTE............................... 27
ARTICLE IV GENERAL LOAN PROVISIONS...................................... 27
SECTION 4.1 PROCEDURE FOR ADVANCES OF LOANS..................... 27
SECTION 4.2 REPAYMENT OF LOANS.................................. 28
SECTION 4.3 NOTES............................................... 29
SECTION 4.4 REPAYMENT; LIMITED INCURRENCE DURING CLEANDOWN
PERIOD.............................................. 30
SECTION 4.5 PERMANENT REDUCTION OF THE REVOLVING CREDIT
COMMITMENT AND THE ACQUISITION COMMITMENT........... 30
SECTION 4.6 TERMINATION OF CREDIT FACILITIES.................... 31
SECTION 4.7 INTEREST............................................ 31
SECTION 4.8 NOTICE AND MANNER OF CONVERSION OR CONTINUATION
OF LOANS............................................ 34
SECTION 4.9 FEES................................................ 34
SECTION 4.10 MANNER OF PAYMENT................................... 34
SECTION 4.11 CREDITING OF PAYMENTS AND PROCEEDS.................. 35
SECTION 4.12 ADJUSTMENTS......................................... 35
SECTION 4.13 NATURE OF OBLIGATIONS OF LENDERS REGARDING
EXTENSIONS OF CREDIT; ASSUMPTION BY THE
ADMINISTRATIVE AGENT................................ 36
SECTION 4.14 CHANGED CIRCUMSTANCES............................... 36
SECTION 4.15 INDEMNITY........................................... 38
SECTION 4.16 CAPITAL REQUIREMENTS................................ 38
SECTION 4.17 TAXES............................................... 39
SECTION 4.18 DUTY TO MITIGATE; ASSIGNMENT OF COMMITMENTS
UNDER CERTAIN CIRCUMSTANCES......................... 40
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING................. 41
SECTION 5.1 CLOSING............................................. 41
SECTION 5.2 CONDITIONS TO CLOSING AND INITIAL EXTENSIONS OF
CREDIT.............................................. 41
SECTION 5.3 CONDITIONS TO ALL EXTENSIONS OF CREDIT.............. 45
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BORROWER............... 45
SECTION 6.1 REPRESENTATIONS AND WARRANTIES...................... 45
SECTION 6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC..... 51
ARTICLE VII FINANCIAL INFORMATION AND NOTICES............................ 51
SECTION 7.1 FINANCIAL STATEMENTS................................ 52
SECTION 7.2 OFFICER'S COMPLIANCE CERTIFICATE.................... 53
SECTION 7.3 OTHER REPORTS....................................... 53
SECTION 7.4 NOTICE OF LITIGATION AND OTHER MATTERS.............. 54
SECTION 7.5 ACCURACY OF INFORMATION............................. 54
ARTICLE VIII AFFIRMATIVE COVENANTS........................................ 55
SECTION 8.1 EXISTENCE; BUSINESSES AND PROPERTIES................ 55
SECTION 8.2 INSURANCE........................................... 55
SECTION 8.3 TAXES 55
SECTION 8.4 EMPLOYEE BENEFITS................................... 55
SECTION 8.5 ACCESS TO PREMISES AND RECORDS; CONFIDENTIALITY..... 56
SECTION 8.6 COMPLIANCE WITH LAWS................................ 56
SECTION 8.7 ADDITIONAL GUARANTORS............................... 56
SECTION 8.8 USE OF PROCEEDS..................................... 56
SECTION 8.9 PARTNERSHIP DOCUMENTS............................... 57
SECTION 8.10 COMPLIANCE WITH ENVIRONMENTAL AND SAFETY LAWS....... 57
SECTION 8.11 PREPARATION OF ENVIRONMENTAL REPORTS................ 57
SECTION 8.12 CORPORATE IDENTITY.................................. 57
SECTION 8.13 FEDERAL RESERVE REGULATIONS......................... 58
SECTION 8.14 AVAILABLE CASH RESERVES............................. 58
SECTION 8.15 FURTHER ASSURANCES.................................. 58
SECTION 8.16 COMMODITY HEDGING POLICY............................ 58
ARTICLE IX FINANCIAL COVENANTS.......................................... 58
SECTION 9.1 INTEREST COVERAGE RATIO............................. 58
SECTION 9.2 LEVERAGE RATIO...................................... 59
ARTICLE X NEGATIVE COVENANTS............................................. 59
SECTION 10.1 INDEBTEDNESS........................................ 59
SECTION 10.2 LIENS............................................... 61
SECTION 10.3 SALE AND LEASE-BACK TRANSACTIONS.................... 63
SECTION 10.4 INVESTMENTS, LOANS AND ADVANCES..................... 64
SECTION 10.5 MERGERS, CONSOLIDATIONS, SALES OF ASSETS
AND ACQUISITIONS.................................... 65
SECTION 10.6 RESTRICTED PAYMENTS................................. 67
SECTION 10.7 TRANSACTIONS WITH AFFILIATES........................ 68
SECTION 10.8 BUSINESS OF BORROWER AND SUBSIDIARIES............... 68
SECTION 10.9 MATERIAL AGREEMENTS; TAX STATUS..................... 68
SECTION 10.10 LEASE OBLIGATIONS................................... 69
SECTION 10.11 PRIORITY INDEBTEDNESS............................... 69
SECTION 10.12 CERTAIN ACCOUNTING CHANGES.......................... 69
SECTION 10.13 RESTRICTIVE AGREEMENTS.............................. 69
ARTICLE XI DEFAULT AND REMEDIES......................................... 69
SECTION 11.1 EVENTS OF DEFAULT................................... 69
SECTION 11.2 REMEDIES............................................ 72
SECTION 11.3 RIGHTS AND REMEDIES CUMULATIVE; NON-WAIVER; ETC..... 72
ARTICLE XII THE ADMINISTRATIVE AGENT..................................... 73
SECTION 12.1 APPOINTMENT.......................................... 73
SECTION 12.2 DELEGATION OF DUTIES................................. 73
SECTION 12.3 EXCULPATORY PROVISIONS............................... 73
SECTION 12.4 RELIANCE BY THE ADMINISTRATIVE AGENT................. 74
SECTION 12.5 NOTICE OF DEFAULT.................................... 74
SECTION 12.6 NON-RELIANCE ON THE ADMINISTRATIVE AGENT AND
OTHER LENDERS........................................ 74
SECTION 12.7 INDEMNIFICATION...................................... 75
SECTION 12.8 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.. 75
SECTION 12.9 RESIGNATION OF THE ADMINISTRATIVE AGENT; SUCCESSOR
ADMINISTRATIVE AGENT................................. 76
SECTION 12.10 OTHER AGENTS; ARRANGERS.............................. 76
ARTICLE XIII MISCELLANEOUS................................................ 76
SECTION 13.1 NOTICES.............................................. 76
SECTION 13.2 EXPENSES; INDEMNITY.................................. 77
SECTION 13.3 SET-OFF ............................................. 78
SECTION 13.4 GOVERNING LAW........................................ 78
SECTION 13.5 CONSENT TO JURISDICTION.............................. 78
SECTION 13.6 WAIVER OF JURY TRIAL................................. 79
SECTION 13.7 REVERSAL OF PAYMENTS................................. 79
SECTION 13.8 INJUNCTIVE RELIEF; PUNITIVE DAMAGES.................. 79
SECTION 13.9 ACCOUNTING MATTERS................................... 80
SECTION 13.10 SUCCESSORS AND ASSIGNS; PARTICIPATIONS............... 80
SECTION 13.11 AMENDMENTS, WAIVERS AND CONSENTS..................... 83
SECTION 13.12 PERFORMANCE OF DUTIES................................ 83
SECTION 13.13 ALL POWERS COUPLED WITH INTEREST..................... 84
SECTION 13.14 SURVIVAL OF INDEMNITIES.............................. 84
SECTION 13.15 TITLES AND CAPTIONS.................................. 84
SECTION 13.16 SEVERABILITY OF PROVISIONS........................... 84
SECTION 13.17 COUNTERPARTS......................................... 84
SECTION 13.18 TERM OF AGREEMENT.................................... 84
SECTION 13.19 INCONSISTENCIES WITH OTHER DOCUMENTS; INDEPENDENT
EFFECT OF COVENANTS.................................. 84
SECTION 13.20 ENTIRE AGREEMENT..................................... 85
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Acquisition Note
Exhibit A-3 - Form of Swingline Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Notice of Conversion/Continuation
Exhibit F - Form of Officer's Compliance Certificate
Exhibit G - Form of Assignment and Acceptance
Exhibit H - Senior Note Agreement
Exhibit I - Lender Addition and Acknowledgment Agreement
SCHEDULES
Schedule 1.1(a) - Lenders and Commitments
Schedule 1.1(b) - Wachovia Letter of Credit
Schedule 6.1(a) - Jurisdictions of Organization and Qualification
Schedule 6.1(b) - Subsidiaries and Capitalization
Schedule 6.1(m) - Defaults
Schedule 6.1(n) - Employee Relations
Schedule 6.1(u) - Indebtedness and Contingent Obligations
Schedule 10.2 - Existing Liens