CREDIT AGREEMENT Dated as of February 20, 2008 among DOLLAR TREE STORES, INC. as Borrower, CERTAIN OF THE DOMESTIC AFFILIATES OF THE BORROWER FROM TIME TO TIME PARTIES HERETO, as Guarantors, THE LENDERS PARTIES HERETO, and WACHOVIA BANK, NATIONAL...
Exhibit
10.1
EXECUTION
COPY
Published
CUSIP Number: ▇▇▇▇▇▇▇▇▇
$550,000,000
Dated
as
of February 20, 2008
among
DOLLAR
TREE STORES, INC.
as
Borrower,
CERTAIN
OF THE DOMESTIC AFFILIATES OF THE
BORROWER
FROM TIME TO TIME PARTIES HERETO,
as
Guarantors,
THE
LENDERS PARTIES HERETO,
and
WACHOVIA
BANK, NATIONAL ASSOCIATION
as
Administrative Agent
BANK
OF
AMERICA, N.A. and NATIONAL CITY BANK,
as
Co-Syndication Agents,
U.S.
BANK, NATIONAL ASSOCIATION and SUNTRUST BANK,
as
Co-Documentation Agents
WACHOVIA
CAPITAL MARKETS, LLC,
as
Sole
Lead Arranger and Book Runner
40115983.6
05151564
TABLE
OF CONTENTS
Page
|
DEFINITIONS
|
1
|
|
|
Section
1.1
|
Defined
Terms
|
1
|
|
|
Section
1.2
|
Other
Definitional Provisions
|
22
|
|
|
Section
1.3
|
Accounting
Terms
|
22
|
|
ARTICLE
II
|
THE
LOANS; AMOUNT AND TERMS
|
23
|
|
|
Section
2.1
|
Revolving
Loans
|
23
|
|
|
Section
2.2
|
Term
Loan
|
26
|
|
|
Section
2.3
|
Letter
of Credit Subfacility
|
26
|
|
|
Section
2.4
|
Fees
|
30
|
|
|
Section
2.5
|
Reduction
of the Revolving Commitments
|
31
|
|
|
Section
2.6
|
Prepayments
|
31
|
|
|
Section
2.7
|
Minimum
Borrowing Amounts and Principal Amounts of Tranches
|
32
|
|
|
Section
2.8
|
Interest
Payments; Default Interest; Interest Payment Dates
|
32
|
|
|
Section
2.9
|
Conversion
Options
|
33
|
|
|
Section
2.10
|
Computation
of Interest and Fees
|
34
|
|
|
Section
2.11
|
Pro
Rata Treatment and Payments
|
35
|
|
|
Section
2.12
|
Non-Receipt
of Funds by the Administrative Agent
|
37
|
|
|
Section
2.13
|
Inability
to Determine Interest Rate
|
38
|
|
|
Section
2.14
|
Illegality
|
38
|
|
|
Section
2.15
|
Requirements
of Law
|
39
|
|
|
Section
2.16
|
Indemnity
|
40
|
|
|
Section
2.17
|
Taxes
|
40
|
|
|
Section
2.18
|
Indemnification;
Nature of Issuing Lender’s Duties
|
42
|
|
|
Section
2.19
|
Waiver
of Notice
|
43
|
|
|
Section
2.20
|
Defaulting
Lenders; Limitation on Claims
|
45
|
| Page | |||
|
|
Section
2.21
|
Replacement
of Lenders
|
46
|
|
|
Section
2.22
|
Extension
of Maturity Date in respect of Revolving Commitments
|
46
|
|
|
Section
2.23
|
Increase
in Revolving Commitments
|
48
|
| ARTICLE III | REPRESENTATIONS AND WARRANTIES 49 |
|
|
Section
3.1
|
Financial
Condition
|
49
|
|
|
Section
3.2
|
No
Change
|
50
|
|
|
Section
3.3
|
Corporate
Existence; Compliance with Law
|
50
|
|
|
Section
3.4
|
Corporate
Power; Authorization; Enforceable Obligations
|
50
|
|
|
Section
3.5
|
No
Legal Bar; No Default
|
51
|
|
|
Section
3.6
|
No
Material Litigation
|
51
|
|
|
Section
3.7
|
Investment
Company Act
|
51
|
|
|
Section
3.8
|
Margin
Regulations
|
51
|
|
|
Section
3.9
|
ERISA
|
51
|
|
|
Section
3.10
|
Environmental
Matters
|
52
|
|
|
Section
3.11
|
Purpose
of Loans
|
53
|
|
|
Section
3.12
|
Subsidiaries
|
53
|
|
|
Section
3.13
|
Ownership
|
53
|
|
|
Section
3.14
|
Indebtedness
|
53
|
|
|
Section
3.15
|
Taxes
|
53
|
|
|
Section
3.16
|
Intellectual
Property
|
54
|
|
|
Section
3.17
|
Solvency
|
54
|
|
|
Section
3.18
|
Investments
|
54
|
|
|
Section
3.19
|
No
Burdensome Restrictions
|
54
|
|
|
Section
3.20
|
Brokers’
Fees
|
54
|
|
|
Section
3.21
|
Labor
Matters
|
55
|
|
|
Section
3.22
|
Accuracy
and Completeness of Information
|
55
|
|
ARTICLE
IV
|
CONDITIONS
PRECEDENT 55
|
|
|
Section
4.1
|
Conditions
to Closing Date and Initial Revolving Loans
|
55
|
|
|
Section
4.2
|
Conditions
to All Extensions of Credit
|
58
|
|
ARTICLE
V
|
AFFIRMATIVE
COVENANTS 59
|
|
|
Section
5.1
|
Financial
Statements
|
59
|
|
|
Section
5.2
|
Certificates;
Other Information
|
60
|
|
|
Section
5.3
|
Payment
of Obligations
|
61
|
|
|
Section
5.4
|
Conduct
of Business and Maintenance of Existence
|
61
|
|
|
Section
5.5
|
Maintenance
of Property; Insurance
|
61
|
|
|
Section
5.6
|
Inspection
of Property; Books and Records; Discussions
|
62
|
|
|
Section
5.7
|
Notices
|
62
|
|
|
Section
5.8
|
Environmental
Laws
|
64
|
|
|
Section
5.9
|
Financial
Covenants
|
64
|
|
|
Section
5.10
|
Obligations
Regarding Subsidiaries; Additional Subsidiary
Guarantors
|
65
|
|
|
Section
5.11
|
Compliance
with Law
|
65
|
|
|
Section
5.12
|
Additional
Credit Parties
|
65
|
|
|
Section
5.13
|
Addition
of Realty Trust as a Credit Party
|
65
|
|
ARTICLE
VI
|
NEGATIVE
COVENANTS 65
|
|
|
Section
6.1
|
Indebtedness
|
66
|
|
|
Section
6.2
|
Liens
|
66
|
|
|
Section
6.3
|
Nature
of Business
|
66
|
|
|
Section
6.4
|
Consolidation,
Merger, Sale or Purchase of Assets, etc
|
67
|
|
|
Section
6.5
|
Advances,
Investments and Loans
|
68
|
|
|
Section
6.6
|
Transactions
with Affiliates
|
68
|
|
|
Section
6.7
|
Ownership
of Subsidiaries; Restrictions
|
69
|
|
|
Section
6.8
|
Fiscal
Year; Organizational Documents; Material Contracts
|
69
|
|
|
Section
6.9
|
Limitation
on Actions
|
69
|
|
|
Section
6.10
|
Restricted
Payments
|
70
|
|
|
Section
6.11
|
Prepayments
of Indebtedness, etc
|
71
|
|
|
Section
6.12
|
Sale
Leasebacks
|
71
|
|
|
Section
6.13
|
Use
of Proceeds
|
71
|
|
ARTICLE
VII
|
EVENTS
OF DEFAULT 71
|
|
|
Section
7.1
|
Events
of Default
|
71
|
|
|
Section
7.2
|
Acceleration;
Remedies
|
74
|
|
ARTICLE
VIII
|
THE
AGENT 74
|
|
|
Section
8.1
|
Appointment
and Authority
|
74
|
|
|
Section
8.2
|
Rights
as a Lender
|
75
|
|
|
Section
8.3
|
Exculpatory
Provisions
|
75
|
|
|
Section
8.4
|
Reliance
by Administrative Agent
|
76
|
|
|
Section
8.5
|
Delegation
of Duties
|
76
|
|
|
Section
8.6
|
Resignation
of Administrative Agent
|
76
|
|
|
Section
8.7
|
Non-Reliance
on Administrative Agent and Other Lenders
|
77
|
|
|
Section
8.8
|
No
Other Duties, etc
|
77
|
|
ARTICLE
IX
|
MISCELLANEOUS
77
|
|
|
Section
9.1
|
Amendments,
Etc.; Non-Consenting Lenders
|
77
|
|
|
Section
9.2
|
Notices
|
80
|
|
|
Section
9.3
|
No
Waiver; Cumulative Remedies
|
81
|
|
|
Section
9.4
|
Survival
of Representations and Warranties
|
81
|
|
|
Section
9.5
|
Payment
of Expenses and Taxes
|
81
|
|
|
Section
9.6
|
Successors
and Assigns
|
82
|
|
|
Section
9.7
|
Adjustments;
Set-off
|
86
|
|
|
Section
9.8
|
Table
of Contents and Section Headings
|
87
|
|
|
Section
9.9
|
Counterparts
|
87
|
|
|
Section
9.10
|
Effectiveness
|
87
|
|
|
Section
9.11
|
Severability
|
87
|
|
|
Section
9.12
|
Integration
|
87
|
|
|
Section
9.13
|
Governing
Law
|
87
|
|
|
Section
9.14
|
Consent
to Jurisdiction and Service of Process
|
87
|
|
|
Section
9.15
|
Arbitration
|
88
|
|
|
Section
9.16
|
Confidentiality
|
89
|
|
|
Section
9.17
|
Acknowledgments
|
90
|
|
|
Section
9.18
|
Waivers
of Jury Trial
|
90
|
|
ARTICLE
X
|
GUARANTY
91
|
|
|
Section
10.1
|
The
Guaranty
|
91
|
|
|
Section
10.2
|
Bankruptcy
|
91
|
|
|
Section
10.3
|
Nature
of Liability
|
92
|
|
|
Section
10.4
|
Independent
Obligation
|
92
|
|
|
Section
10.5
|
Authorization
|
92
|
|
|
Section
10.6
|
Reliance
|
93
|
|
|
Section
10.7
|
Waiver
|
93
|
|
|
Section
10.8
|
Limitation
on Enforcement
|
94
|
|
|
Section
10.9
|
Confirmation
of Payment
|
94
|
Schedules
Schedule
1.1(a)
Account Designation Letter
Schedule
1.1(b)
Investments
Schedule
1.1(c)
Liens
Schedule
2.1(a)
Lenders and Commitments
Schedule
2.1(b)(i) Form of Notice
of Borrowing
Schedule
2.1(d)
Form of Revolving Note
Schedule
2.1(h)
Form of Swingline Note
Schedule
2.2(c)
Form of Term Note
Schedule
2.9
Form of Notice of Conversion/Extension
Schedule
3.12
Subsidiaries
Schedule
4.1(b)
Form of Secretary’s Certificate
Schedule
4.1(g)
Form of Solvency Certificate
Schedule
5.12
Form of Joinder Agreement
Schedule
6.1(b)
Indebtedness
Schedule
9.2
Lenders’ Lending Offices
Schedule
9.6(c)
Form of Assignment and Assumption
Annex
A
Corporate Structure After Corporate Reorganization
40115983.6
05151564
CREDIT
AGREEMENT, dated as of
February 20, 2008, among DOLLAR
TREE STORES, INC., a Virginia corporation (the “Borrower”),
each
Domestic Subsidiary of the Borrower identified as a “Guarantor” on the signature
pages hereto and such other Domestic Subsidiaries of the Borrower as may from
time to time become a party hereto (collectively, the “Subsidiary
Guarantors” or, the “Guarantors”),
the
several banks and other financial institutions as may from time to time become
parties to this Agreement (collectively, the “Lenders”; and
individually, a “Lender”) and WACHOVIA
BANK, NATIONAL
ASSOCIATION, as administrative agent for the Lenders hereunder (in such
capacity, the “Administrative Agent”
or the “Agent”).
WITNESSETH:
WHEREAS,
the Borrower has requested that the Lenders make loans and other financial
accommodations to the Borrower as more particularly described herein;
WHEREAS,
the Lenders have agreed to make such loans and other financial accommodations
to
the Borrower on the terms and conditions contained herein;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein, the parties hereto hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.1 Defined
Terms.
As
used
in this Agreement, terms defined in the preamble to this Agreement have the
meanings therein indicated, and the following terms have the following
meanings:
“ABR
Swingline Loans”
shall mean Swingline Loans that bear interest at an interest rate based
on the
Alternate Base Rate.
“Account
Designation
Letter” shall mean the Notice of Account Designation Letter dated the
Closing Date from the Borrower to the Administrative Agent substantially in
the
form attached hereto as Schedule
1.1(a).
“Additional
Commitment
Lender” shall have the meaning set forth in Section 2.22(d).
“Additional
Credit
Party” shall mean each Person that becomes a Guarantor by execution of a
Joinder Agreement in accordance with Section 5.12.
“Adjusted
Leverage
Ratio” shall mean, with respect to the Parent and its Subsidiaries on a
consolidated basis for the twelve month period ending on the last day of any
fiscal quarter, the ratio of (a) the sum of (i) Total Debt calculated on the
last day of such period plus (ii)
Consolidated Rental Expense for such period multiplied by six (6)
to (b) Consolidated EBITDAR for such period.
“Administrative
Agent”
shall have the meaning set forth in the first paragraph of this Agreement
and
any successors in such capacity.
“Administrative
Questionnaire” shall mean an Administrative Questionnaire in a form
supplied by the Administrative Agent.
“Affiliate”
shall
mean
as to any Person, any other Person (excluding any Subsidiary) which, directly
or
indirectly, is in control of, is controlled by, or is under common control
with,
such Person. For purposes of this definition, a Person shall be deemed to be
“controlled by” a Person if such Person possesses, directly or indirectly, power
either (a) to vote 10% or more of the securities having ordinary voting power
for the election of directors of such Person or (b) to direct or cause the
direction of the management and policies of such Person whether by contract
or
otherwise.
“Agreement”
shall
mean
this Credit Agreement, as amended, modified or supplemented from time to time
in
accordance with its terms.
“Alternate
Base Rate”
shall mean, for any day, a rate per annum equal to the greater of (a)
the Prime
Rate in effect on such day and (b) the Federal Funds Effective Rate in effect
on
such day plus 1/2 of 1%. For purposes hereof: “Prime Rate” shall
mean, at any time, the rate of interest per annum publicly announced from time
to time by Wachovia at its principal office in Charlotte, North Carolina as
its
prime rate. Each change in the Prime Rate shall be effective as of
the opening of business on the day such change in the Prime Rate
occurs. The parties hereto acknowledge that the rate announced
publicly by Wachovia as its Prime Rate is an index or base rate and shall not
necessarily be its lowest or best rate charged to its customers or other banks;
and “Federal Funds
Effective Rate” shall mean, for any day, the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published on the next succeeding Business Day, the average of
the
quotations for the day of such transactions received by the Administrative
Agent
from three federal funds brokers of recognized standing selected by
it. If for any reason the Administrative Agent shall have determined
(which determination shall be conclusive in the absence of manifest error)
that
it is unable to ascertain the Federal Funds Effective Rate, for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms thereof, the Alternate Base
Rate shall be determined without regard to clause (b) of the first sentence
of
this definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due
to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective on the opening of business on the date of such change.
“Alternate
Base Rate
Loans” shall mean Revolving Loans that bear interest at an interest rate
based on the Alternate Base Rate.
“Applicable
Percentage” shall mean, for any day, the rate per annum set forth below
opposite the applicable Level then in effect, it being understood that the
Applicable Percentage for (i) Revolving Loans which are Alternate Base Rate
Loans and ABR Swingline Loans shall be the percentage set forth under the column
“Alternate Base Rate Margin for Revolving Loans and ABR Swingline Loans”,
(ii) Revolving Loans which are LIBOR Rate Loans, Index Rate Loans, Index
Rate Swingline Loans and Standby Letter of Credit Fees shall be the percentage
set forth under the column “LIBOR Rate Margin for Revolving Loans, Index Rate
Swingline Loans and Standby Letter of Credit Fees”, (iii) Term Loans which are
Alternate Base Rate Loans shall be the percentage set forth under the column
“Alternate Base Rate Margin for Term Loans”, (iv) Term Loans which
are LIBOR Rate Loans or Index Rate Loans shall be the percentage set forth
under
the column “LIBOR Rate Margin for Term Loans”, (v) the Trade Letter of Credit
Fees shall be the percentage set forth under the column “Trade Letter of Credit
Fees” and (vi) the Facility Fee shall be the percentage set forth under the
column “Facility Fee”:
|
Level
|
Pricing
Grid Leverage Ratio
|
Alternate
Base
Rate
Margin
for
Revolving
Loans and ABR Swingline Loans
|
LIBOR
Rate Margin for Revolving Loans, Index Rate Swingline Loans and Standby
Letter of Credit Fees
|
Alternate
Base
Rate
Margin
for
Term
Loans
|
LIBOR
Rate Margin for Term Loans
|
Trade
Letter of Credit Fees
|
Facility
Fee
|
|
I
|
<
1.00 to 1.0
|
0.00%
|
0.40%
|
0.100%
|
0.500%
|
0.20%
|
0.100%
|
|
II
|
³
1.00 to 1.0 but <
1.25 to 1.0
|
0.00%
|
0.50%
|
0.125%
|
0.625%
|
0.25%
|
0.125%
|
|
III
|
³
1.25 to 1.0 but <
1.50 to 1.0
|
0.00%
|
0.70%
|
0.175%
|
0.875%
|
0.35%
|
0.175%
|
|
IIV
|
>
1.50 to 1.0
|
0.00%
|
0.80%
|
0.200%
|
1.000%
|
0.40%
|
0.200%
|
The
Applicable Percentage shall, in each case, be determined and adjusted quarterly
on the date five (5) Business Days after the date on which the Parent is
required to provide to the Administrative Agent the quarterly financial
information and certifications in accordance with the provisions of
Sections 5.1(a) and (b) and 5.2(c) (each an “Interest Determination
Date”). Such Applicable Percentage shall be effective from
such Interest Determination Date until the next such Interest Determination
Date. The initial Applicable Percentages shall be based on Level I
until the first Interest Determination Date occurring after the Closing
Date. After the Closing Date, if the Parent shall fail to provide the
quarterly financial information and certifications in accordance with the
provisions of Sections 5.1(a) and (b) and 5.2(c), the Applicable Percentage
from such Interest Determination Date shall, on the date five (5)
Business Days after the date by which the Parent was so required to provide
such
financial information and certifications to the Administrative Agent and the
Lenders, be based
on Level III until such time as such information and certifications are
provided, whereupon the Level shall be determined by the then current Pricing
Grid Leverage Ratio.
“Approved
Fund” shall
mean any Fund that is administered, managed or underwritten by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
“Assignment
and
Assumption” shall mean an Assignment and Assumption, substantially in the
form of Schedule
9.6(c) hereto.
“Bankruptcy
Code”
shall mean the Bankruptcy Code in Title 11 of the United States Code,
as
amended, modified, succeeded or replaced from time to time.
“Borrower”
shall
have
the meaning set forth in the first paragraph of this Agreement.
“Borrowing
Date” shall
mean, in respect of any Loan, the date such Loan is made.
“Business”
shall
have
the meaning set forth in Section 3.10.
“Business
Day” shall
mean a day other than a Saturday, Sunday or other day on which commercial banks
in Charlotte, North Carolina or Norfolk, Virginia are authorized or required
by
law to close; provided, however,
that when
used in connection with a rate determination, borrowing or payment in respect
of
a LIBOR Rate Loan, Index Rate Loan or an Index Rate Swingline Loan, the term
“Business Day” shall also exclude any day on which banks in London, England are
not open for dealings in Dollar deposits in the London interbank market.
“Capital
Lease” shall
mean any lease of property, real or personal, the obligations with respect
to
which are required to be capitalized on a balance sheet of the lessee in
accordance with GAAP.
“Capital
Lease
Obligations” shall mean the capitalized lease obligations relating to a
Capital Lease determined in accordance with GAAP.
“Capital
Stock” shall
mean (i) in the case of a corporation, capital stock, (ii) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of capital stock, (iii) in
the
case of a partnership, partnership interests (whether general or limited),
(iv)
in the case of a limited liability company, membership interests and (v) any
other interest or participation that confers on a Person the right to receive
a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
“Cash
Equivalents”
shall mean (i) securities issued directly or fully guaranteed or insured
by the
United States of America or any agency or instrumentality thereof (provided
that
the full faith and credit of the United States of America is pledged in support
thereof) having maturities of not more than twelve months from the date of
acquisition (“Government
Obligations”), (ii) U.S. dollar denominated (or foreign currency fully
hedged) time deposits, certificates of deposit, eurodollar time deposits and
eurodollar certificates of deposit of (y) any domestic commercial bank of
recognized standing having capital and surplus in excess of $250,000,000 or
(z)
any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from ▇▇▇▇▇’▇ is at least P-1 or the equivalent
thereof (any such bank being an “Approved Bank”), in
each case with maturities of not more than one year from the date of
acquisition, (iii) commercial paper and variable or fixed rate notes issued
by
any Approved Bank (or by the parent company thereof) or any commercial paper
or
variable rate notes issued by, or guaranteed by any domestic corporation rated
A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent
thereof) or better by Moody’s and maturing within nine months of the date of
acquisition, (iv) repurchase agreements with a bank or trust company (including
a Lender) or a recognized securities dealer having capital and surplus in excess
of $500,000,000 for direct obligations issued by or fully guaranteed by the
United States of America, (v) obligations of any state of the United States
or
any political subdivision thereof rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by Moody’s having
maturities of not more than one year or having a “put” feature of less than one
year, and (vi) auction preferred stock rated in the highest short-term credit
rating category by S&P or Moody’s.
“Change
of Control”
shall mean (a) any Person or two or more Persons acting in concert shall
have
acquired “beneficial ownership,” directly or indirectly, of, or shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition
of,
control over, Voting Stock of the Parent (or other securities convertible into
such Voting Stock) representing 35% or more of the combined voting power of
all
Voting Stock of the Parent, (b) during any period of up to 25 consecutive
months, commencing after the Closing Date, individuals who at the beginning
of
such 25 month period were directors of the Parent (together with any new
director whose election by the Parent’s Board of Directors or whose nomination
for election by the Parent’s shareholders was approved by a vote of at least
two-thirds of the directors then still in office who either were directors
at
the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
directors of the Parent then in office or (c) the Parent shall fail to own
all
of the Capital Stock of the other Credit Parties. As used herein,
“beneficial ownership” shall have the meaning provided in Rule 13d-3 of the
Securities and Exchange Commission under the Securities Act of 1934.
“Closing
Date” shall
mean the date of this Agreement.
“Code”
shall
mean the
Internal Revenue Code of 1986, as amended from time to time.
“Commitment”
shall
mean the Revolving Commitment, the Term Loan Commitment, the LOC Commitment
and
the Swingline Commitment, individually or collectively, as appropriate.
“Commitment
Percentage” shall mean the Revolving Commitment Percentage, the Term Loan
Commitment Percentage and/or the LOC Commitment Percentage, as
appropriate.
“Commitment
Period”
shall mean the period from and including the Closing Date to but not
including
the Maturity Date.
“Commonly
Controlled
Entity” shall mean an entity, whether or not incorporated, which is under
common control with the Borrower within the meaning of Section 4001 of ERISA
or
is part of a group which includes the Borrower and which is treated as a single
employer under Section 414 of the Code.
“Consolidated
EBITDA”
shall
mean,
for any period, the sum of (i) Consolidated Net Income for such period, plus (ii) an
amount
which, in the determination of Consolidated Net Income for such period, has
been
deducted for (A) Consolidated Interest Expense, (B) total federal, state, local
and foreign income taxes and (C) depreciation, amortization expense and other
non-cash charges, minus (iii)
extraordinary gains of the Parent and its Subsidiaries for such
period. Except as otherwise provided herein, the applicable period
shall be for the four consecutive quarters ending as of the date of
computation.
“Consolidated
EBITDAR”
shall mean, for any period, the sum of (a) Consolidated EBITDA for such
period
plus
(b) Consolidated
Rental Expense for such period.
“Consolidated
Fixed
Charges” shall
mean, for any period, the sum of (i) Consolidated Interest Expense for such
period plus
(ii) Consolidated Rental Expense for such period of the Parent and its
Subsidiaries on a consolidated basis determined in accordance with GAAP, applied
on a consistent basis. The applicable period shall be for the four
consecutive quarters ending as of the date of computation.
“Consolidated
Interest
Expense” shall mean, for any period, all interest expense (net of
interest income) of the Parent and its Subsidiaries, including the interest
component under Capital Leases, as determined in accordance with
GAAP. Except as otherwise provided herein, the applicable period
shall be for the four consecutive quarters ending as of the date of
computation.
“Consolidated
Net
Income” shall mean, for any period, net income (excluding extraordinary
items) after taxes for such period of the Parent and its Subsidiaries on a
consolidated basis, as determined in accordance with GAAP. Except as
otherwise provided herein, the applicable period shall be for the four
consecutive quarters ending as of the date of computation.
“Consolidated
Net
Worth” shall mean total shareholders’ equity (or its equivalent) of the
Parent and its Subsidiaries on a consolidated basis, determined in accordance
with GAAP applied on a consistent basis.
“Consolidated
Rental
Expense” shall mean, for any applicable period of computation, the sum of
all real property rental expense of the Parent and its Subsidiaries on a
consolidated basis for such period, determined in accordance with GAAP.
“Contractual
Obligation” shall mean, as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or undertaking to which
such Person is a party or by which it or any of its property is bound.
“Corporate
Reorganization” shall mean, collectively, (i) the formation of each of
the Parent Guarantor, as a subsidiary of the Borrower, and DTS Merger Co.,
as a
subsidiary of the Parent Guarantor, (ii) the merger of DTS Merger Co. into
the
Borrower, with the Borrower as the surviving entity, (iii) the liquidation
of
each of DT Keystone Management Inc., DT Keystone Distribution, Inc., DT Keystone
Distribution, LLC and DT Keystone Distribution, R.L.L.L.P., (iv) the
reorganization of Dollar Tree Distribution, Inc. and Greenbrier International,
Inc. as direct subsidiaries of the Parent Guarantor and (v) all other
transactions incident thereto, such that after giving effect to the foregoing,
the corporate ownership structure of the Parent Guarantor and its Subsidiaries
shall be as set forth on Annex A to this
Agreement.
“Credit
Documents”
shall mean this Agreement, each of the Notes, any Joinder Agreement,
the Letters
of Credit and the LOC Documents.
“Credit
Party” shall
mean any of the Borrower or the Guarantors.
“Credit
Party
Obligations” shall mean, without duplication, (i) all of the obligations
of the Credit Parties to the Lenders (including the Issuing Lenders) and the
Administrative Agent, whenever arising, under this Agreement, the Notes or
any
of the other Credit Documents (including, but not limited to, any interest
accruing after the occurrence of a filing of a petition of bankruptcy under
the
Bankruptcy Code with respect to any Credit Party, regardless of whether such
interest is an allowed claim under the Bankruptcy Code) and (ii) all liabilities
and obligations, whenever arising, owing from any Credit Party to any Lender,
or
any Affiliate of a Lender, arising under any Hedging Agreement.
“Debt”
shall
mean,
with respect to any Person, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon which interest payments
are customarily made, (c) all obligations of such Person under conditional
sale
or other title retention agreements relating to assets purchased by such Person
(other than customary reservations or retentions of title under agreements
with
suppliers entered into in the ordinary course of business), (d) all obligations
of such Person issued or assumed as the deferred purchase price of assets or
services purchased by such Person (other than trade debt incurred in the
ordinary course of business and due within six months of the incurrence thereof)
which would appear as liabilities on a balance sheet of such Person, (e) the
principal portion of all obligations of such Person under Capital Leases, (f)
the maximum amount of all standby letters of credit issued or bankers’
acceptances facilities created for the account of such Person and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed), (g)
all
preferred Capital Stock issued by such Person and which by the terms thereof
could be (at the request of the holders thereof or otherwise) subject to
mandatory sinking fund payments, redemption or other acceleration, (h) the
principal balance outstanding under any synthetic lease, tax retention operating
lease, accounts receivable securitization program, off-balance sheet loan or
similar off-balance sheet financing product, (i) all Debt of others of the
type
referred to in clauses (a) through (h) above secured by (or for which the holder
of such Debt has an existing right, contingent or otherwise, to be secured
by)
any Lien on, or payable out of the proceeds of production from, property owned
or acquired by such Person, whether or not the obligations secured thereby
have
been assumed, (j) all Guaranty Obligations of such Person with respect to Debt
of the type referred to in clauses (a) through (h) above of another Person
and
(k) Debt of the type referred to in clauses (a) through (h) above of any
partnership or unincorporated joint venture in which such Person is legally
obligated or has a reasonable expectation of being liable with respect
thereto.
“Default”
shall
mean
any of the events specified in Section 7.1, whether or not any requirement
for
the giving of notice or the lapse of time, or both, or any other condition,
has
been satisfied.
“Defaulting
Lender”
shall mean, at any time, any Lender that, at such time (a) has failed
to make a
Loan required pursuant to the terms of this Credit Agreement, including the
funding of a Participation Interest in accordance with the terms hereof, (b)
has
failed to pay to the Administrative Agent or any other Lender an amount owed
by
such Lender pursuant to the terms of this Credit Agreement, or (c) has been
deemed insolvent by its principal regulator or has become subject to a
bankruptcy or insolvency proceeding or to a receiver, trustee or similar
official.
“Dollars”
and
“$”
shall
mean dollars
in lawful currency of the United States of America.
“Domestic
Lending
Office” shall mean, initially, the office of each Lender designated as
such Lender’s Domestic Lending Office shown in its Administrative Questionnaire;
and thereafter, such other office of such Lender as such Lender may from time
to
time specify to the Administrative Agent and the Borrower as the office of
such
Lender at which Alternate Base Rate Loans and Index Rate Loans of such Lender
are to be made.
“Domestic
Subsidiary”
shall mean any Subsidiary that is organized and existing under the laws
of the
United States or any state or commonwealth thereof or under the laws of the
District of Columbia.
“Eligible
Assignee”
shall mean (a) a Lender, (b) an Affiliate of a Lender, (c) an
Approved Fund, and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, (ii) in the case of any
assignment of a Revolving Commitment, the Issuing Lender, and (iii) unless
an Event of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee”
shall not
include the Borrower or any of the Borrower’s Affiliates or
Subsidiaries.
“Engagement
Letter”
shall mean the letter agreement dated January 9, 2008 addressed to Dollar
Tree
Stores, Inc. from the Administrative Agent, as amended, modified or otherwise
supplemented.
“Environmental
Claim”
shall mean, with respect to any Person, any written or oral notice, claim,
demand or other communication (collectively, a “claim”) by any other Person
alleging or asserting such Person’s liability for investigatory costs, cleanup
costs, governmental response costs, damages to natural resources or other
Property, personal injuries, fines or penalties arising out of, based on or
resulting from (a) the presence, or release into the environment, of any
Hazardous Material at any location, whether or not owned by such Person, or
(b)
circumstances forming the basis of any violation, or alleged violation, of
any
Environmental Law. The term “Environmental Claim” shall include,
without limitation, any claim by any Governmental Authority for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant to
any
applicable Environmental Law, and any claim by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from the presence of Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
“Environmental
Laws”
shall mean any and all applicable foreign, Federal, state, local or
municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees,
requirements of any Governmental Authority or other Requirement of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time be in effect during the term of this Agreement.
“ERISA”
shall
mean the
Employee Retirement Income Security Act of 1974, as amended from time to
time.
“ERISA
Affiliate”
shall mean any corporation or trade or business that is a member of
any group of
organizations (i) described in Section
414(b) or (c) of the Code of which any Credit Party or any of its Subsidiaries
is a member, (ii) solely for purposes of potential liability under Section
302(c)(11) of ERISA and Section 4l2(c)(l1) of the Code and the lien created
under Section 302(f) of ERISA and Section 412(n) of the Code, described in
Section 414(m) or (o) of the Code of which any Credit Party or any of its
Subsidiaries is a member and (iii) which are under common control with any
Credit Party or any of its Subsidiaries within the meaning of Section
4001(a)(14) of ERISA.
“ERISA
Reorganization”
shall mean, with respect to any Multiemployer Plan, the condition that
such Plan
is in reorganization within the meaning of such term as used in Section 4241
of
ERISA.
“Eurodollar
Reserve
Percentage” shall mean for any day, the percentage (expressed as a
decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%)
which is in effect for such day as prescribed by the Federal Reserve Board
(or
any successor) for determining the maximum reserve requirement (including
without limitation any basic, supplemental or emergency reserves) in respect
of
Eurocurrency liabilities, as defined in Regulation D of such Board as in effect
from time to time, or any similar category of liabilities for a member bank
of
the Federal Reserve System in New York City.
“Event
of Default”
shall mean any of the events specified in Section 7.1; provided,
however,
that any
requirement for the giving of notice or the lapse of time, or both, or any
other
condition, has been satisfied.
“Excluded
Disposition”
shall mean the sale, transfer, or other disposition of (a) any motor
vehicles or
other equipment no longer used or useful in the business of the Parent or any
of
its Subsidiaries, (b) any inventory in the ordinary course of business and
on
ordinary business terms, (c) Permitted Investments described in clause (a)
of
the definition thereof and (d) “margin stock” within the meaning of Regulation
U.
“Existing
Borrower”
shall mean Dollar Tree Distribution, Inc., a Virginia corporation.
“Existing
Credit
Agreement” shall mean that certain Credit Agreement dated as of March 5,
2004, as amended, among the Borrower, the Existing Borrower, the Guarantors
party thereto, the lenders party thereto, SunTrust Bank and National City Bank
as Co-Syndication Agents, Fleet National Bank as Documentation Agent, and
Wachovia Bank, National Association as Administrative Agent.
“Existing
Maturity
Date” shall have the meaning set forth in Section 2.22(a).
“Extension
of Credit”
shall mean, as to any Lender, the making of a Loan by such Lender or
the
issuance of, or participation in, a Letter of Credit or Swingline Loan by such
Lender.
“Extension
Request”
shall have the meaning set forth in Section 2.22(a).
“Facility
Fee” shall
have the meaning set forth in Section 2.4(a).
“Federal
Funds Effective
Rate” shall have the meaning set forth in the definition of “Alternate
Base Rate”.
“Fixed
Charge Coverage
Ratio” shall mean, with respect to the Parent and its Subsidiaries on a
consolidated basis for the twelve month period ending on the last day of any
fiscal quarter of the Parent, the ratio of (i) Consolidated EBITDAR to (ii)
Consolidated Fixed Charges.
“Foreign
Subsidiary”
shall mean any Subsidiary that is not a Domestic Subsidiary.
“Fronting
Fee” shall
have the meaning set forth in Section 2.4(b).
“GAAP”
shall
mean
generally accepted accounting principles in effect in the United States of
America applied on a consistent basis, subject, however,
in the case
of determination of compliance with the financial covenants set out in Section
5.9 to the provisions of Section 1.3.
“Government
Acts”
shall have the meaning set forth in Section 2.18.
“Governmental
Authority” shall mean any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government.
“Guarantor”
shall
mean
any of the Parent Guarantor, the Domestic Subsidiaries identified as a
“Guarantor” on the signature pages hereto and the Additional Credit Parties
which execute a Joinder Agreement, together with their successors and permitted
assigns.
“Guaranty”
shall
mean
the guaranty of the Guarantors set forth in Article X.
“Guaranty
Obligations”
shall mean, with respect to any Person, without duplication, any obligations
of
such Person (other than endorsements in the ordinary course of business of
negotiable instruments for deposit or collection) guaranteeing or intended
to
guarantee any Indebtedness of any other Person in any manner, whether direct
or
indirect, and including without limitation any obligation, whether or not
contingent, (i) to purchase any such Indebtedness or any property constituting
security therefor, (ii) to advance or provide funds or other support for the
payment or purchase of any such Indebtedness or to maintain working capital,
solvency or other balance sheet condition of such other Person (including
without limitation keep well agreements, maintenance agreements, comfort letters
or similar agreements or arrangements) for the benefit of any holder of
Indebtedness of such other Person, (iii) to lease or purchase assets, securities
or services primarily for the purpose of assuring the holder of such
Indebtedness, or (iv) to otherwise assure or hold harmless the holder of such
Indebtedness against loss in respect thereof. The amount of any
Guaranty Obligation hereunder shall (subject to any limitations set forth
therein) be deemed to be an amount equal to the outstanding principal amount
(or
maximum principal amount, if larger) of the Indebtedness in respect of which
such Guaranty Obligation is made.
“Hazardous
Material”
shall mean, collectively, (a) any petroleum or petroleum products, flammable
materials, explosives, radioactive materials, asbestos, urea formaldehyde foam
insulation, and transformers or other equipment that contain polychlorinated
biphenyls (“PCB’s”), (b) any
chemicals or other materials or substances that are now or hereafter become
defined as or included in the definition of “hazardous substances”, “hazardous
wastes”, “hazardous materials”, “extremely hazardous wastes”, “restricted
hazardous wastes”, “toxic substances”, “toxic pollutants”, “contaminants”,
“pollutants” or words of similar import under any Environmental Law and (c) any
other chemical or other material or substance, exposure to which is now or
hereafter prohibited, limited or regulated under any Environmental Law.
“Hedging
Agreements”
shall mean, with respect to any Person, any agreement entered into to
protect
such Person against fluctuations in interest rates, or currency or raw materials
values, including, without limitation, any interest rate swap, cap or collar
agreement or similar arrangement between such Person and one or more
counterparties, any foreign currency exchange agreement, currency protection
agreements, commodity purchase or option agreements or other interest or
exchange rate hedging agreements.
“Indebtedness”
shall
mean, with respect to any Person, without duplication, (a) all obligations
of
such Person for borrowed money, (b) all obligations of such Person evidenced
by
bonds, debentures, notes or similar instruments, or upon which interest payments
are customarily made, (c) all obligations of such Person under conditional
sale
or other title retention agreements relating to assets purchased by such Person
(other than customary reservations or retentions of title under agreements
with
suppliers entered into in the ordinary course of business), (d) all obligations
of such Person issued or assumed as the deferred purchase price of assets or
services purchased by such Person (other than trade debt incurred in the
ordinary course of business and due within six months of the incurrence thereof)
which would appear as liabilities on a balance sheet of such Person, (e) all
obligations of such Person under take-or-pay or similar arrangements, (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien
on,
or payable out of the proceeds of production from, assets owned or acquired
by
such Person, whether or not the obligations secured thereby have been assumed,
(g) all Guaranty Obligations of such Person with respect to Indebtedness of
another Person, (h) the principal portion of all obligations of such Person
under Capital Leases, (i) all obligations of such Person under Hedging
Agreements, (j) the maximum amount of all standby letters of credit issued
or
bankers’ acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent unreimbursed),
(k) all preferred Capital Stock issued by such Person and which by the terms
thereof could be (at the request of the holders thereof or otherwise) subject
to
mandatory sinking fund payments, redemption or other acceleration, (l) the
principal balance outstanding under any synthetic lease, tax retention operating
lease, accounts receivable securitization program, off-balance sheet loan or
similar off-balance sheet financing product, and (m) the Indebtedness of any
partnership or unincorporated joint venture in which such Person is a general
partner or a joint venturer.
“Index
Rate” shall
mean, for any day, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) equal to the London interbank offered rate for one
(1) month Dollar deposits appearing on Reuters Screen LIBOR01 Page (or any successor page) at
approximately 11:00 A.M. (London time), on such day, or if such day is not
a
Business Day, then the immediately preceding Business Day (or if not so
reported, then as determined by the Administrative Agent from another recognized
source or interbank quotation).
“Index
Rate Loan”
shall mean Revolving Loans the rate of interest applicable to which
is based on
the Index Rate.
“Index
Rate Swingline
Loan” shall mean Swingline Loans the rate of interest applicable to which
is based on the Index Rate.
“Insolvency”
shall
mean, with respect to any Multiemployer Plan, the condition that such Plan
is
insolvent within the meaning of such term as used in Section 4245 of
ERISA.
“Insolvent”
shall
mean
being in a condition of Insolvency.
“Intellectual
Property” has the meaning set forth in Section 3.16.
“Interest
Payment
Date” shall mean (a) as to any Alternate Base Rate Loan, Index Rate Loan
or any Swingline Loan, the last day of each March, June, September and December
and on the applicable Maturity Date, (b) as to any LIBOR Rate Loan having an
Interest Period of three months or less, the last day of such Interest Period,
and (c) as to any LIBOR Rate Loan having an Interest Period longer than three
months, the day which is three months after the first day of such Interest
Period and the last day of such Interest Period.
“Interest
Period”
shall mean, with respect to any LIBOR Rate Loan,
(i)
initially, the period commencing on the Borrowing Date or conversion date,
as
the case may be, with respect to such LIBOR Rate Loan and ending (a) fourteen
days or (b) one, two, three or six months thereafter, as selected by the
Borrower in the Notice of Borrowing or Notice of Conversion given with respect
thereto; and
(ii)
thereafter, each period commencing on the last day of the immediately preceding
Interest Period applicable to such LIBOR Rate Loan and ending (a) fourteen
days
or (b) one, two, three or six months thereafter, as selected by the Borrower
by
irrevocable notice to the Administrative Agent not less than three Business
Days
prior to the last day of the then current Interest Period with respect
thereto;
provided
that the
foregoing provisions are subject to the following:
(A)
if any Interest Period pertaining to a LIBOR Rate Loan would otherwise end
on a
day that is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(B)
any Interest Period (other than a 14-day Interest Period) pertaining to a LIBOR
Rate Loan that begins on the last Business Day of a calendar month (or on a
day
for which there is no numerically corresponding day in the calendar month at
the
end of such Interest Period) shall end on the last Business Day of the relevant
calendar month;
(C)
if the Borrower shall fail to give notice as provided above, the Borrower shall
be deemed to have selected an Alternate Base Rate Loan to replace the affected
LIBOR Rate Loan;
(D)
no Interest Period shall extend beyond the Maturity Date; and
(E)
no more than six (6) LIBOR Rate Loans may
be
in effect at any time. For purposes hereof, LIBOR Rate Loans with
different Interest Periods shall be considered as separate LIBOR Rate Loans,
even if they shall begin on the same date and have the same duration, although
borrowings, extensions and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods to constitute a
new
LIBOR Rate Loan with a single Interest Period.
“Issuing
Lender” shall
mean (i) Wachovia or (ii) such other Lender reasonably acceptable to the
Administrative Agent selected by the Borrower from time to time to issue a
Letter of Credit.
“Issuing
Lender Fees”
shall have the meaning set forth in Section 2.4(c).
“Joinder
Agreement”
shall mean a Joinder Agreement substantially in the form of Schedule
5.12,
executed and delivered by an Additional Credit Party in accordance with the
provisions of Section 5.12.
“Lender”
shall
have
the meaning set forth in the first paragraph of this Agreement.
“Letters
of Credit”
shall mean any letter of credit issued by an Issuing Lender pursuant
to the
terms hereof, as such Letters of Credit may be amended, modified, extended,
renewed or replaced from time to time.
“LIBOR”
shall
mean,
for any LIBOR Rate Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBOR01 Page (or any successor page) as the London interbank offered
rate
for deposits in Dollars at approximately 11:00 A.M. (London time) two Business
Days prior to the first day of such Interest Period for a term comparable to
such Interest Period; provided that if
more
than one rate is specified on Reuters Screen LIBOR01 Page, the applicable rate
shall be the arithmetic mean of all such rates (rounded upwards, if necessary,
to the nearest 1/100 of 1%). If, for any reason, neither of such
rates is available, then “LIBOR” shall mean
the
rate per annum at which, as determined by the Administrative Agent, Dollars
in
an amount comparable to the Loans then requested are being offered to leading
banks at approximately 11:00 A.M. London time, two (2) Business Days prior
to
the commencement of the applicable Interest Period for settlement in immediately
available funds by leading banks in the London interbank market for a period
equal to the Interest Period selected. Notwithstanding the foregoing,
for any LIBOR Rate Loan having an Interest Period of fourteen days, LIBOR shall
be determined for such Loan as if such Loan had an Interest Period of
one-month.
“LIBOR
Lending Office”
shall mean, initially, the office of each Lender designated as such
Lender’s
LIBOR Lending Office shown in its Administrative Questionnaire; and thereafter,
such other office of such Lender as such Lender may from time to time specify
to
the Administrative Agent and the Borrower as the office of such Lender at which
the LIBOR Rate Loans of such Lender are to be made.
“LIBOR
Rate” shall
mean a rate per annum (rounded upwards, if necessary, to the next higher 1/100th
of 1%) determined by the Administrative Agent pursuant to the following
formula:
LIBOR
Rate = LIBOR
1.00
- Eurodollar
Reserve Percentage
“LIBOR
Rate Loan”
shall mean Revolving Loans the rate of interest applicable to which
is based on
the LIBOR Rate.
“Lien”
shall
mean any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind
or
nature whatsoever (including, without limitation, any conditional sale or other
title retention agreement and any Capital Lease having substantially the same
economic effect as any of the foregoing).
“Loan”
shall
mean a
Revolving Loan, or a portion of any Revolving Loan or a Swingline Loan, as
applicable.
“LOC
Commitment” shall
mean the commitment of the Issuing Lender(s) to issue Letters of Credit and
with
respect to each Revolving Lender, the commitment of such Lender to purchase
participation interests in the Letters of Credit up to such Lender’s LOC
Committed Amount as specified in Schedule 2.1(a), as
such amount may be reduced from time to time in accordance with the provisions
hereof.
“LOC
Commitment
Percentage” shall mean, for each Revolving Lender, the percentage
identified as its LOC Commitment Percentage on Schedule 2.1(a), as
such percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 9.6(c).
“LOC
Committed Amount”
shall mean, collectively, the aggregate amount of all of the LOC Commitments
of
the Revolving Lenders to issue and participate in Letters of Credit as
referenced in Section 2.3 and, individually, the amount of each Revolving
Lender’s LOC Commitment as specified in Schedule
2.1(a).
“LOC
Documents” shall
mean, with respect to any Letter of Credit, such Letter of Credit, any
amendments thereto, any documents delivered in connection therewith, any
application therefor, and any agreements, instruments, guarantees or other
documents (whether general in application or applicable only to such Letter
of
Credit) governing or providing for (i) the rights and obligations of the parties
concerned or (ii) any collateral security for such obligations.
“LOC
Obligations”
shall mean, at any time, the sum of (i) the maximum amount which is,
or at any
time thereafter may become, available to be drawn under Letters of Credit then
outstanding, assuming compliance with all requirements for drawings referred
to
in such Letters of Credit plus (ii) the
aggregate amount of all drawings under Letters of Credit honored by the Issuing
Lender(s) but not theretofore reimbursed.
“Mandatory
Borrowing”
shall have the meaning set forth in Section 2.3(e) or 2.1(f)(ii), as
the context
may require.
“Material
Adverse
Effect” shall mean a material adverse effect on (a) the business,
condition (financial or otherwise), assets, liabilities or operations of the
Parent and its Subsidiaries taken as a whole, which has caused or could
reasonably be expected to cause the Consolidated Net Worth of the Parent and
its
Subsidiaries to decrease by ten percent (10%) or more from the then current
Consolidated Net Worth of the Parent and its Subsidiaries, (b) the ability
of
the Borrower or any Guarantor to perform its obligations, when such obligations
are required to be performed, under this Agreement, any of the Notes or any
other Credit Document or (c) the validity or enforceability of this Agreement,
any of the Notes or any of the other Credit Documents or the rights or remedies
of the Administrative Agent or the Lenders hereunder or thereunder.
“Material
Contract”
shall mean any contract or other arrangement, whether written or oral,
to which
the Parent or any of its Subsidiaries is a party as to which the breach,
nonperformance, cancellation or failure to renew by any party thereto could
reasonably be expected to have a Material Adverse Effect.
“Maturity
Date” shall
mean the date which is five (5) years from the Closing Date, subject, in respect
of the Revolving Commitments only, to the provisions of Section 2.22.
“Moody’s”
shall
mean
▇▇▇▇▇’▇ Investors Service, Inc.
“Multiemployer
Plan”
shall mean a Plan which is a multiemployer plan as defined in Section
4001(a)(3)
of ERISA.
“Non-Extending
Lender”
shall have the meaning set forth in Section 2.22(b).
“Note”
or
“Notes”
shall
mean the
Revolving Notes, the Term Notes and the Swingline Note, collectively, separately
or individually, as appropriate.
“Notice
Date” shall
have the meaning set forth in Section 2.22(b).
“Notice
of Borrowing”
shall mean the written notice of borrowing as referenced and defined
in Section
2.1(b)(i).
“Notice
of Conversion”
shall mean the written notice of extension or conversion as referenced
and
defined in Section 2.9.
“Obligations”
shall
mean, collectively, Loans and LOC Obligations.
“Parent”
shall
mean
(i) prior to the completion of the Corporate Reorganization, the Borrower,
and
(ii) immediately upon completion of the Corporate Reorganization, the Parent
Guarantor.
“Parent
Guarantor”
shall mean, Dollar Tree, Inc., a Virginia corporation, to be formed
in
connection with the Corporate Reorganization.
“Participant”
shall
have the meaning set forth in Section 9.6(b).
“Participation
Interest” shall mean the purchase by a Revolving Lender of a
participation interest in Letters of Credit as provided in Section 2.3 or in
Swingline Loans as provided in Section 2.1(f).
“PBGC”
shall
mean the
Pension Benefit Guaranty Corporation established pursuant to Subtitle A of
Title
IV of ERISA.
“Permitted
Acquisition” shall mean an acquisition by any Credit Party which (i) is
an acquisition of a Person or assets of a Person in the same or a similar line
of business which has pro forma EBITDA before the acquisition in an
amount greater than $0 for the immediately preceding twelve month period,
(ii) is approved by the Board of Directors or the requisite shareholders of
the Person being acquired or Person transferring the assets being acquired,
(iii) if an acquisition of Capital Stock of a Person, all issued and outstanding
Capital Stock of such Person is acquired, (iv) after giving effect to such
acquisition on a Pro Forma Basis, the Credit Parties shall be in compliance
with
each of the financial covenants set forth in Section 5.9 and (v) both before
and
after giving effect to such acquisition, no Default or Event of Default shall
have occurred and be continuing.
“Permitted
Investments” shall mean:
(a)
cash or Cash Equivalents;
(b)
investments outstanding as of the Closing Date and identified in Schedule
1.1(b);
(c)
investments of any Subsidiary of the Parent in any Credit Party or investments
of any Credit Party in any other Credit Party;
(d)
Permitted Acquisitions;
(e)
operating deposit accounts with depository institutions;
(f)
Hedging Agreements;
(g)
investments permitted under Section 6.4(b) hereof;
(h)
investments by the Parent and its Subsidiaries in the Capital Stock of their
Subsidiaries to the extent outstanding as of the Closing Date;
(i)
loans and advances to employees in the ordinary course of business not exceeding
$1,000,000 in the aggregate;
(j)
deposits to secure bids, tenders, utilities, vendors, leases, licenses,
statutory obligations, surety and appeal bonds and other deposits of like nature
arising in the ordinary course of business; and
(k)
additional investments up to but not exceeding $75,000,000 in the aggregate
during each fiscal year.
As
used
herein, “investment” shall
mean all investments, in cash or by delivery of assets made, directly or
indirectly in, to or from any Person, whether by acquisition of shares of
Capital Stock, property, assets, indebtedness or other obligations or securities
or by loan advance, capital contribution or otherwise.
“Permitted
Liens”
shall mean:
(a)
Liens created by or otherwise existing, under or in connection with this
Agreement or the other Credit Documents in favor of the Lenders;
(b)
Liens in existence on the Closing Date and listed on Schedule
1.1(c);
(c)
Liens imposed by any Governmental Authority for taxes, assessments or charges
not yet delinquent or that are being contested in good faith and by appropriate
proceedings if, unless the amount thereof is not material with respect to it
or
its financial condition, adequate reserves with respect thereto are maintained
on the books of the Parent or the affected Subsidiaries, as the case may be,
in
accordance with GAAP;
(d)
carriers’, warehousemen’s, mechanics’, materialmen’s, landlord’s, repairmen’s or
other like Liens arising in the ordinary course of business that are not overdue
for a period of more than 30 days or that are being contested in good faith
and
by appropriate proceedings;
(e)
Liens securing judgments but only to the extent for an amount and for a period
not resulting in an Event of Default under Section 7.1(f) hereof;
(f)
pledges or deposits under worker’s compensation, unemployment insurance and
other social security legislation;
(g)
deposits or pledges to secure the performance of bids, trade contracts (other
than for Indebtedness), leases, licenses, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;
(h)
easements, rights-of-way, restrictions and other similar encumbrances incurred
in the ordinary course of business and encumbrances consisting of zoning
restrictions, easements, licenses, restrictions on the use of Property or minor
imperfections in title thereto that, in the aggregate, are not material in
amount, and that do not in any case materially detract from the value of the
Property subject thereto or interfere with the ordinary conduct of the business
of the Parent or any of its Subsidiaries;
(i)
Liens upon assets of the Parent or any of its Subsidiaries acquired after the
Closing Date securing Indebtedness permitted by Section 6.1(c) hereof; provided that (A)
no
such Lien shall extend to or cover any assets of the Parent or such Subsidiary
other than the assets so acquired, (B) the principal amount of Indebtedness
secured by any such Lien shall at no time exceed the fair market value (as
determined in good faith by a Responsible Officer of the Parent) of such assets
at the time they were acquired, and (C) any such Lien shall attach within 60
days of the date such assets were acquired;
(j)
Liens upon real Property heretofore leased or leased after the date hereof
(under operating or Capital Leases) in the ordinary course of business by the
Parent or any of its Subsidiaries in favor of the lessor created at the
inception of the lease transaction, securing obligations of the Parent or any
of
its Subsidiaries under or in respect of such lease and extending to or covering
only the Property subject to such lease and improvements thereon;
(k)
protective Uniform Commercial Code filings with respect to personal Property
leased by, or consigned to, any of the Parent or its Subsidiaries; and
(l)
Liens (excluding blanket Liens on accounts, inventory, equipment or general
intangibles) securing Indebtedness permitted to be incurred pursuant to Section
6.1(e).
“Person”
shall
mean an
individual, partnership, corporation, limited liability company, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
“Plan”
shall
mean, at
any particular time, any employee benefit plan which is covered by Title IV
of
ERISA and in respect of which the Borrower or a Commonly Controlled Entity
is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.
“Pricing
Grid Leverage
Ratio” shall mean, with respect to the Parent and its Subsidiaries on a
consolidated basis for the twelve month period ending on the last day of any
fiscal quarter, the ratio of (a) Total Debt, calculated on the last day of
such
period to (b) Consolidated EBITDA for such period.
“Prime
Rate” shall
have the meaning set forth in the definition of Alternate Base Rate.
“Pro
Forma Basis”
shall mean, with respect to any Permitted Acquisition, asset sale, incurrence
of
indebtedness or sale-leaseback transaction permitted hereunder or dividend
made
pursuant to Section 6.10(e), that such Permitted Acquisition, asset sale,
incurrence of indebtedness, sale-leaseback transaction or dividend shall be
deemed to have occurred or been made, as applicable, as of the first day of
the
four fiscal-quarter period ending as of the most recent fiscal quarter end
preceding the date such Permitted Acquisition, asset sale, incurrence of
indebtedness or sale-leaseback transaction occurred or such dividend was
made.
“Property”
shall
mean
any tangible property or assets, whether real or personal.
“Purchasing
Lenders”
shall have the meaning set forth in Section 9.6(c).
“Real
Properties”
shall have the meaning set forth in Section 3.10(a).
“Recovery
Event” shall
mean the receipt by the Parent or any of its Subsidiaries of any cash insurance
proceeds or condemnation award payable by reason of theft, loss, physical
destruction or damage, taking or similar event with respect to any of their
respective property or assets.
“Register”
shall
have
the meaning set forth in Section 9.6(d).
“Related
Parties”
shall mean, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person
and
of such Person’s Affiliates.
“Reportable
Event”
shall mean any of the events set forth in Section 4043(c) of ERISA,
other than
those events as to which the thirty-day notice period is waived under PBGC
Reg.
§4043.
“Required
Lenders”
shall mean Lenders holding in the aggregate greater than 50% of (i)(A)
the
Revolving Commitments (and Participation Interests therein) or (B) if the
Revolving Commitments have been terminated, the outstanding Revolving Loans
and
Participation Interests (including the Participation Interests of the Issuing
Lender in any Letters of Credit and of the Swingline Lender in Swingline Loans),
and (ii) the
principal amount of Term Loans then outstanding at such time; provided, however,
that if any
Lender shall be a Defaulting Lender at such time, then there shall be excluded
from the determination of Required Lenders, all Loans and LOC Obligations
(including Participation Interests) owing to such Defaulting Lender and such
Defaulting Lender’s Commitments, or after termination of the Commitments, the
principal balance of the Loans and LOC Obligations owing to such Defaulting
Lender.
“Requirement
of Law”
shall mean, as to any Person, the Certificate of Incorporation and By-laws
or
other organizational or governing documents of such Person, and each law,
treaty, rule or regulation or determination of an arbitrator or a court or
other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
“Responsible
Officer”
of any Person shall mean the President, the Chief Executive Officer,
the Chief
Financial Officer or the Vice President/Treasurer of such Person.
“Restricted
Payment”
shall mean (a) any dividend or other distribution, direct or indirect,
on
account of any shares of any class of Capital Stock of the Parent or any of
its
Subsidiaries, now or hereafter outstanding, (b) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of Capital Stock of the Parent or any
of
its Subsidiaries, now or hereafter outstanding, or (c) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of Capital Stock of the Parent
or
any of its Subsidiaries, now or hereafter outstanding.
“Revolving
Commitment”
shall mean, with respect to each Revolving Lender, the commitment of
such Lender
to make Revolving Loans in an aggregate principal amount at any time outstanding
up to such Lender’s Revolving Commitment Percentage of the Revolving Committed
Amount as specified in Schedule 2.1(a), as
such amount may be increased or reduced from time to time in accordance with
the
provisions hereof or in connection with any assignment made in accordance with
the provisions of Section 9.6(c).
“Revolving
Commitment
Percentage” shall mean, for each Revolving Lender, the percentage
identified as its Revolving Commitment Percentage on Schedule 2.1(a), as
such percentage may be reduced in connection with any assignment made in
accordance with the provisions of Section 9.6(c).
“Revolving
Committed
Amount” shall have the meaning set forth in Section 2.1(a).
“Revolving
Credit Increase
Effective Date” shall have the meaning set forth in Section
2.23(d).
“Revolving
Lender”
shall mean a Lender holding a Revolving Commitment.
“Revolving
Loan” shall
have the meaning set forth in Section 2.1(a).
“Revolving
Note” or
“Revolving
Notes” shall mean the promissory notes of the Borrower in favor of each
of the Revolving Lenders evidencing the Revolving Loans provided pursuant to
Section 2.1(d), individually or collectively, as appropriate, as such promissory
notes may be amended, modified, supplemented, extended, renewed or replaced
from
time to time.
“S&P”
shall
mean
Standard & Poor’s Ratings Group.
“SEC”
shall
mean the
Securities and Exchange Commission or any successor thereto.
“Single
Employer Plan”
shall mean any Plan which is not a Multiemployer Plan.
“Standby
Letter of Credit
Fee” shall have the meaning set forth in Section 2.4(b).
“Subsidiary”
shall
mean, as to any Person, a corporation, partnership, limited liability company
or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, partnership
or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a
“Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Parent and shall include the Subsidiary Guarantors,
and,
if the Parent is no longer the Borrower, the Borrower.
“Subsidiary
Guarantors” shall have the meaning set forth in the first paragraph of
this Agreement.
“Swingline
Commitment”
shall mean the commitment of the Swingline Lender to make Swingline
Loans in an
aggregate principal amount at any time outstanding up to the Swingline Committed
Amount, and the commitment of the Revolving Lenders to purchase Participation
Interests in the Swingline Loans as provided in Section 2.1(f)(ii), as such
amounts may be reduced from time to time in accordance with the provisions
hereof.
“Swingline
Committed
Amount” shall mean the amount of the Swingline Lender’s Swingline
Commitment as specified in Section 2.1(e).
“Swingline
Lender”
shall mean Wachovia Bank, National Association.
“Swingline
Loan” or
“Swingline
Loans” shall have the meaning set forth in Section 2.1(e).
“Swingline
Note” shall
mean the promissory note of the Borrower in favor of the Swingline Lender
evidencing the Swingline Loans provided pursuant to Section 2.1(h), as such
promissory note may be amended, modified, supplemented, extended, renewed or
replaced from time to time.
“Taxes”
shall
have the
meaning set forth in Section 2.17.
“Term
Loan” shall have
the meaning set forth in Section 2.2(a).
“Term
Loan Commitment”
shall mean, with respect to each Term Loan Lender, the commitment of
such Lender
to make its portion of Term Loan in a principal amount equal to such Lender’s
Term Loan Commitment Percentage of the Term Loan Committed Amount.
“Term
Loan Commitment
Percentage” shall mean, for any Term Loan Lender, the percentage
identified as its Term Loan Commitment Percentage on Schedule 2.1(a), as such
percentage may be modified in connection with any assignment made in accordance
with the provisions of Section 9.6.
“Term
Loan Committed
Amount” shall have the meaning set forth in Section 2.2(a).
“Term
Loan Lender”
shall mean a Lender holding a Term Loan Commitment.
“Term
Note” or “Term Notes”
shall
mean the promissory notes of the Borrower in favor of each of the Term Loan
Lenders evidencing the Term Loans provided pursuant to Section 2.2(c),
individually or collectively, as appropriate, as such promissory notes may
be
amended, modified, supplemented, extended, renewed or replaced from time to
time.
“Total
Debt” shall
mean, as of any date of calculation, all Debt of the Parent and its
Subsidiaries, on a consolidated basis.
“Trade
Letter of Credit
Fee” shall have the meaning set forth in Section 2.4(b).
“Tranche”
shall
mean
the collective reference to (a) LIBOR Rate Loans whose Interest Periods begin
and end on the same day and (b) Alternate Base Rate Loans made on the same
day. A Tranche with respect to LIBOR Rate Loans may sometimes be
referred to as a “LIBOR Tranche”.
“Type”
shall
mean, as
to any Revolving Loan, its nature as an Alternate Base Rate Loan, Index Rate
Loan or LIBOR Rate Loan, as the case may be.
“Voting
Stock” shall
mean, with respect to any Person, Capital Stock issued by such Person the
holders of which are ordinarily, in the absence of contingencies, entitled
to
vote for the election of directors (or persons performing similar functions)
of
such Person, even though the right so to vote has been suspended by the
happening of such a contingency.
“Wachovia”
shall
mean
Wachovia Bank, National Association, a national banking association.
Section
1.2 Other
Definitional Provisions.
(a) Unless
otherwise specified therein, all terms defined in this Agreement shall have
the
defined meanings when used in the Notes or other Credit Documents or any
certificate or other document made or delivered pursuant hereto.
(b) The
words
“hereof”, “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(c) The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms.
Section
1.3 Accounting
Terms.
Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP applied on a basis consistent with the most recent audited
consolidated financial statements of the Parent delivered to the Lenders.
The
Borrower shall deliver to the Administrative Agent and each Lender at the same
time as the delivery of any annual or quarterly financial statements given
in
accordance with the provisions of Section 5.1, (i) a description in reasonable
detail of any material change in the application of accounting principles
employed in the preparation of such financial statements from those applied
in
the most recently preceding quarterly or annual financial statements as to
which
no objection shall have been made in accordance with the provisions above and
(ii) a reasonable estimate of the effect on the financial statements on account
of such changes in application.
ARTICLE
II
THE
LOANS; AMOUNT AND TERMS
Section
2.1 Revolving
Loans.
(a) Revolving
Loans and
Revolving Commitment. During the Commitment Period, subject to
the terms and conditions hereof, each Revolving Lender severally agrees to
make
revolving credit loans (“Revolving Loans”) to
the Borrower from time to time for the purposes hereinafter set forth; provided, however,
that (i)
with regard to each Revolving Lender individually, the sum of such Lender’s
outstanding Revolving Loans plus such Lender’s
LOC Commitment Percentage of LOC Obligations shall not exceed such Lender’s
Revolving Commitment Percentage of the Revolving Committed Amount and (ii)
with
regard to the Revolving Lenders collectively, the sum of the aggregate amount
of
outstanding Revolving Loans plus outstanding
Swingline Loans plus LOC Obligations
shall not exceed the Revolving Committed Amount. For purposes hereof,
the aggregate amount available under this Section 2.1(a) shall be THREE HUNDRED
MILLION DOLLARS ($300,000,000) (as
such aggregate maximum amount may be reduced from time to time as provided
in
Section 2.5 or increased from time to time as provided in Section 2.23, the
“Revolving Committed
Amount”). Revolving Loans may consist of Alternate Base Rate
Loans, Index Rate Loans or LIBOR Rate Loans, or a combination thereof, as the
Borrower may request, and may be repaid and reborrowed in accordance with the
provisions hereof. LIBOR Rate Loans shall be made by each Revolving
Lender at its LIBOR Lending Office and Alternate Base Rate Loans and Index
Rate
Loans at its Domestic Lending Office.
(b) Revolving
Loan
Borrowings.
(i) Notice
of
Borrowing. The Borrower shall request a Revolving Loan
borrowing by written notice (or telephone notice promptly confirmed in writing
which confirmation may be by fax) to the Administrative Agent not later than
11:00 A.M. (Charlotte, North Carolina time) on the date of requested borrowing
in the case of Alternate Base Rate Loans and Index Rate Loans, and on the third
Business Day prior to the date of the requested borrowing in the case of LIBOR
Rate Loans. Each such request for borrowing shall be irrevocable and
shall specify (A) that a Revolving Loan is requested, (B) the date of the
requested borrowing (which shall be a Business Day), (C) the aggregate principal
amount to be borrowed, (D) whether the borrowing shall be comprised of Alternate
Base Rate Loans, Index Rate Loans or LIBOR Rate Loans or a combination thereof,
and if LIBOR Rate Loans are requested, the Interest Period(s)
therefor. A form of Notice of Borrowing (a “Notice of Borrowing”)
is attached as Schedule
2.1(b)(i). If the Borrower shall fail to specify in any such
Notice of Borrowing (I) an applicable Interest Period in the case of a LIBOR
Rate Loan, then such notice shall be deemed to be a request for an Interest
Period of one month, or (II) the Type of Revolving Loan requested, then such
notice shall be deemed to be a request for an Alternate Base Rate Loan
hereunder. The Administrative Agent shall give notice to each
Revolving Lender promptly upon receipt of each Notice of Borrowing, the contents
thereof and each such Lender’s share thereof. LIBOR Rate Loans shall
not be available hereunder until three (3) Business Days after the Closing
Date. Revolving Loans made on the Closing Date may only consist of
Alternate Base Rate Loans or Index Rate Loans.
(ii) Advances. Each
Revolving Lender will make its Revolving Commitment Percentage of each Revolving
Loan borrowing available to the Administrative Agent for the account of the
Borrower at the office of the Administrative Agent specified in Schedule 9.2, or at
such other office as the Administrative Agent may designate in writing, by
1:00
P.M. (Charlotte, North Carolina time) on the date specified in the applicable
Notice of Borrowing in Dollars and in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to
the Borrower by the Administrative Agent by crediting the account of the
Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Revolving Lenders and in like
funds
as received by the Administrative Agent.
(c) Repayment. The
principal amount of all Revolving Loans shall be due and payable in full on
the
Maturity Date (as such term may be modified pursuant to the provisions of
Section 2.22).
(d) Revolving
Notes. Each Revolving Lender’s Revolving Commitment Percentage
of the Revolving Loans shall be evidenced by a duly executed promissory note
of
the Borrower to such Lender in substantially the form of Schedule 2.1(d), if
requested by such Lender.
(e) Swingline
Loans and
Swingline Commitment. During the Commitment Period, subject to
the terms and conditions hereof, the Swingline Lender, in its individual
capacity, agrees to make certain revolving credit loans to the Borrower (each
a
“Swingline
Loan” and, collectively, the “Swingline
Loans”) for
the purposes hereinafter set forth; provided, however,
(i) the
aggregate amount of Swingline Loans outstanding at any time shall not exceed
THIRTY-FIVE MILLION DOLLARS
($35,000,000) (the “Swingline
Committed
Amount”), and (ii) the sum of the outstanding Revolving Loans plus outstanding
Swingline Loans plus LOC Obligations
shall not exceed the Revolving Committed Amount. Swingline Loans
hereunder may be repaid and reborrowed in accordance with the provisions
hereof.
(f) Swingline
Loan
Borrowings.
(i) Notice
of Borrowing and
Disbursement. The Swingline Lender will make Swingline Loans
available to the Borrower on any Business Day upon request made by the Borrower
not later than 11:00 A.M. (Charlotte, North Carolina time) on such Business
Day. A notice of request for Swingline Loan borrowing shall be made
in the form of Schedule 2.1(b)(i)
with appropriate modifications. Swingline Loan borrowings hereunder
shall be made in minimum amounts of $100,000 and in integral amounts of $100,000
in excess thereof.
(ii) Repayment
of Swingline
Loans. Each Swingline Loan borrowing shall have such maturity
date as the Swingline Lender and the Borrower shall agree upon receipt by the
Swingline Lender of the relevant Notice of Borrowing from the Borrower, but
in
no event shall the maturity of any Swingline Loan extend beyond the Maturity
Date. The Swingline Lender may, at any time, in its sole discretion,
by written notice to the Borrower and the Administrative Agent, demand repayment
of its Swingline Loans by way of a Revolving Loan borrowing, in which case
the
Borrower shall be deemed to have requested a Revolving Loan borrowing comprised
entirely of Index Rate Loans in the amount of such Swingline Loans; provided, however,
that, in the
following circumstances, any such demand shall also be deemed to have been
given
one Business Day prior to each of (i) the Maturity Date, (ii) the occurrence
of
any Event of Default described in Section 7.1(e), (iii) upon acceleration of
the
Credit Party Obligations hereunder, whether on account of an Event of Default
described in Section 7.1(e) or any other Event of Default, and (iv) the exercise
of remedies in accordance with the provisions of Section 7.2 hereof (each such
Revolving Loan borrowing made on account of any such deemed request therefor
as
provided herein being hereinafter referred to as “Mandatory
Borrowing”). Each Revolving Lender severally hereby
irrevocably agrees to make its Commitment Percentage of such Revolving Loans
promptly upon any such request or deemed request on account of each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the same such date notwithstanding (I)
the amount of Mandatory Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise required hereunder, (II) whether any
conditions specified in Section 4.2 are then satisfied, (III) whether a Default
or an Event of Default then exists, (IV) failure of any such request or deemed
request for Revolving Loans to be made by the time otherwise required in Section
2.1(b)(i), (V) the date of such Mandatory Borrowing, or (VI) any reduction
in
the Revolving Committed Amount or termination of the Revolving Commitments
immediately prior to such Mandatory Borrowing or contemporaneously
therewith. In the event that any Mandatory Borrowing cannot for any
reason be made on the date otherwise required above (including as a result
of
the commencement of a proceeding under the Bankruptcy Code), then each Revolving
Lender hereby agrees that it shall forthwith purchase (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrowers on or after such date and prior to such purchase)
from the Swingline Lender such participations in the outstanding
Swingline Loans as shall be necessary to cause each such Lender to share in
such
Swingline Loans ratably based upon its respective Revolving Commitment
Percentage (determined before giving effect to any termination of the
Commitments pursuant to Section 7.2), provided that (A)
all
interest payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective participation is
purchased, and (B) at the time any purchase of participations pursuant to this
sentence is actually made, the purchasing Lender shall be required to pay to
the
Swingline Lender interest on the principal amount of such participation
purchased for each day from and including the day upon which the Mandatory
Borrowing would otherwise have occurred to but excluding the date of payment
for
such participation, at the rate equal to, if paid within two (2) Business Days
of the date of the Mandatory Borrowing, the Federal Funds Effective Rate, and
thereafter at a rate equal to the Alternate Base Rate.
(g) Interest
on Swingline
Loans. Subject to the provisions of Section 2.8, at the
Borrower’s election, Swingline Loans shall bear interest at a per annum rate
equal to (i) the Alternate Base Rate plus the Applicable
Percentage for ABR Swingline Loans or (ii) Index Rate plus the Applicable
Percentage for Index Rate Swingline Loans. Interest on Swingline
Loans shall be payable in arrears on each Interest Payment Date.
(h) Swingline
Note. The Swingline Loans shall be evidenced by a duly
executed promissory note of the Borrower to the Swingline Lender in the original
amount of the Swingline Committed Amount and substantially in the form of Schedule
2.1(h).
Section
2.2 Term
Loan.
(a) Making
of Term
Loan. Subject to the terms and conditions hereof and in
reliance upon the representations and warranties set forth herein, each Term
Loan Lender severally agrees to make available to the Borrower on the Closing
Date such Lender’s Term Loan Commitment Percentage of a term loan in Dollars
(the “Term
Loan”) in the aggregate principal amount of TWO HUNDRED FIFTY
MILLION DOLLARS
($250,000,000.00) (the “Term Loan
Committed
Amount”) for the purposes hereinafter set forth. The Term Loan
may consist of Alternate Base Rate Loans, Index Rate Loans or LIBOR Rate Loans,
or a combination thereof, as the Borrower may request; provided, however,
the Term
Loan made on the Closing Date may only consist of Alternate Base Rate Loans
or
Index Rate Loans. Amounts repaid on the Term Loan may not be
reborrowed. LIBOR Rate Loans shall be made by each Term Loan Lender
at its LIBOR Lending Office and Alternate Base Rate Loans and Index Rate Loans
at its Domestic Lending Office.
(b) Repayment
of Term
Loan. The principal amount of the Term Loan shall be due and
payable in full on the Maturity Date.
(c) Term
Notes. Each Term Loan Lender’s Term Loan Commitment Percentage
of the Term Loan shall be evidenced by a duly executed promissory note of the
Borrower to such Lender in substantially the form of Schedule 2.2(c), if
requested by such Lender.
Section
2.3 Letter
of
Credit Subfacility.
(a) Issuance. In
reliance upon the other Revolving Lenders’ obligation to participate therein,
and subject to the terms and conditions hereof and of the LOC Documents, if
any,
and any other terms and conditions which the applicable Issuing Lender may
reasonably require, during the Commitment Period the applicable Issuing Lender
shall issue, and the Revolving Lenders shall participate in, Letters of Credit
for the account of the Borrower from time to time upon request in a form
acceptable to the applicable Issuing Lender; provided, however,
that (i) the
aggregate amount of LOC Obligations shall not at any time exceed the lesser
of
(A) ONE HUNDRED FIFTY MILLION
DOLLARS ($150,000,000) and (B) the Revolving Committed Amount (the “LOC Committed
Amount”), (ii) the sum of the aggregate amount of Revolving Loans plus outstanding
Swingline Loans plus LOC Obligations
shall not at any time exceed the Revolving Committed Amount, (iii) all Letters
of Credit shall be denominated in Dollars and (iv) Letters of Credit shall
be
issued for lawful corporate purposes and may be issued as standby letters of
credit, including in connection with workers’ compensation and other insurance
programs, and trade letters of credit. Except as
otherwise expressly agreed upon by the applicable Issuing Lender and the
Administrative Agent, no Letter of Credit shall have an original expiry date
beyond one-year; provided, however,
so long as
no Default or Event of Default has occurred and is continuing and subject to
the
other terms and conditions to the issuance of Letters of Credit hereunder,
the
expiry dates of Letters of Credit may be extended periodically from time to
time
on the request of the Borrower or by operation of the terms of the applicable
Letter of Credit; provided, further,
that no
Letter of Credit, as originally issued or as extended, shall have an expiry
date
extending beyond the Maturity Date unless the Borrower shall have established
a
cash collateral account in favor of the Agent for the benefit of the Revolving
Lenders and deposited therein cash and Cash Equivalents in a sufficient amount
to adequately secure the LOC Obligations which extend beyond the Maturity
Date. Each Letter of Credit shall comply with the related LOC
Documents. The issuance and expiry date of each Letter of Credit
shall be a Business Day. Any Letters of Credit issued hereunder shall
be in a minimum original face amount of $100,000.
(b) Notice
and
Reports. The request for the issuance of a Letter of Credit
shall be submitted to the applicable Issuing Lender at least five (5) Business
Days prior to the requested date of issuance. Each Issuing Lender
will promptly upon request provide to the Administrative Agent for dissemination
to the Revolving Lenders a detailed report specifying the Letters of Credit
issued by such Issuing Lender which are then issued and outstanding and any
activity with respect thereto which may have occurred since the date of any
prior report, and including therein, among other things, the account party,
the
beneficiary, the face amount, expiry date as well as any payments or expirations
which may have occurred. Each Issuing Lender will further provide to
the Administrative Agent promptly upon request copies of the Letters of Credit
issued by such Issuing Lender. Each Issuing Lender will provide to
the Administrative Agent promptly upon request a summary report of the nature
and extent of LOC Obligations of such Issuing Lender then
outstanding.
(c) Participations. Each
Revolving Lender upon issuance of a Letter of Credit shall be deemed to have
purchased without recourse a risk participation from the applicable Issuing
Lender in such Letter of Credit and the obligations arising thereunder and
any
collateral relating thereto, in each case in an amount equal to its LOC
Commitment Percentage of the obligations under such Letter of Credit and shall
absolutely, unconditionally and irrevocably assume, as primary obligor and
not
as surety, and be obligated to pay to the applicable Issuing Lender therefor
and
discharge when due, its LOC Commitment Percentage of the obligations arising
under such Letter of Credit. Without limiting the scope and nature of
each Revolving Lender’s participation in any Letter of Credit, to the extent
that an Issuing Lender has not been reimbursed as required hereunder or under
any LOC Document, each such Lender shall pay to such Issuing Lender its LOC
Commitment Percentage of such unreimbursed drawing in same day funds on the
day
of notification by such Issuing Lender of an unreimbursed drawing pursuant
to
the provisions of subsection (d) below if such notice is received at or before
2:00 P.M. (Charlotte, North Carolina time), otherwise such payment shall be
made
at or before 12:00 Noon (Charlotte, North Carolina time) on the Business Day
next succeeding the day such notice is received. The obligation of
each Revolving Lender to so reimburse the applicable Issuing Lender shall be
absolute and unconditional and shall not be affected by the occurrence of a
Default, an Event of Default or any other occurrence or event. Any
such reimbursement shall not relieve or otherwise impair the obligation of
the
Borrower to reimburse the applicable Issuing Lender under any Letter of Credit,
together with interest as hereinafter provided.
(d) Reimbursement. In
the event of any drawing under any Letter of Credit, the applicable Issuing
Lender will promptly notify the Borrower and the Administrative
Agent. The Borrower shall reimburse the applicable Issuing Lender on
the day of drawing under any Letter of Credit (with the proceeds of a Revolving
Loan obtained hereunder or otherwise) in same day funds as provided herein
or in
the LOC Documents. If the Borrower shall fail to reimburse the
applicable Issuing Lender as provided herein, the unreimbursed amount of such
drawing shall bear interest at a per annum rate equal to the Alternate Base
Rate
plus the Applicable Percentage. Unless the Borrower shall immediately
notify the applicable Issuing Lender and the Administrative Agent of its intent
to otherwise reimburse the applicable Issuing Lender, the Borrower shall be
deemed to have requested a Revolving Loan in the amount of the drawing as
provided in subsection (e) below, the proceeds of which will be used to satisfy
the reimbursement obligations. The Borrower’s reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of any rights of set-off, counterclaim or defense
to
payment the Borrower may claim or have against the applicable Issuing Lender,
the Administrative Agent, the Revolving Lenders, the beneficiary of the Letter
of Credit drawn upon or any other Person, including without limitation any
defense based on any failure of the Borrower to receive consideration or the
legality, validity, regularity or unenforceability of the Letter of
Credit. The applicable Issuing Lender will promptly notify the other
Revolving Lenders of the amount of any unreimbursed drawing and each Revolving
Lender shall promptly pay to the Administrative Agent for the account of the
applicable Issuing Lender in Dollars and in immediately available funds, the
amount of such Lender’s LOC Commitment Percentage of such unreimbursed
drawing. Such payment shall be made on the day such notice is
received by such Lender from the applicable Issuing Lender if such notice is
received at or before 2:00 P.M. (Charlotte, North Carolina time), otherwise
such
payment shall be made at or before 12:00 Noon (Charlotte, North Carolina time)
on the Business Day next succeeding the day such notice is
received. If such Lender does not pay such amount to the applicable
Issuing Lender in full upon such request, such Lender shall, on demand, pay
to
the Administrative Agent for the account of the applicable Issuing Lender
interest on the unpaid amount during the period from the date of such drawing
until such Lender pays such amount to the applicable Issuing Lender in full
at a
rate per annum equal to, if paid within two (2) Business Days of the date of
drawing, the Federal Funds Effective Rate and thereafter at a rate equal to
the
Alternate Base Rate. Each Revolving Lender’s obligation to make such
payment to the applicable Issuing Lender, and the right of the applicable
Issuing Lender to receive the same, shall be absolute and unconditional, shall
not be affected by any circumstance whatsoever and without regard to the
termination of this Agreement or the Commitments hereunder, the existence of
a
Default or Event of Default or the acceleration of the Credit Party Obligations
hereunder and shall be made without any offset, abatement, withholding or
reduction whatsoever.
(e) Repayment
with Revolving
Loans. On any day on which the Borrower shall have requested,
or been deemed to have requested a Revolving Loan to reimburse a drawing under
a
Letter of Credit, the Administrative Agent shall give notice to the Revolving
Lenders that a Revolving Loan has been requested or deemed requested in
connection with a drawing under a Letter of Credit, in which case a Revolving
Loan borrowing comprised entirely of Alternate Base Rate Loans (each such
borrowing, a “Mandatory Borrowing”)
shall be immediately made (without giving effect to any termination of the
Commitments pursuant to Section 7.2) prorata
based on each
Revolving Lender’s respective Revolving Commitment Percentage (determined before
giving effect to any termination of the Commitments pursuant to Section 7.2)
and
in the case of both clauses (i) and (ii) the proceeds thereof shall be paid
directly to the applicable Issuing Lender for application to the respective
LOC
Obligations. Each Revolving Lender hereby irrevocably agrees to make
such Revolving Loans immediately upon any such request or deemed request on
account of each Mandatory Borrowing in the amount and in the manner specified
in
the preceding sentence and on the same such date notwithstanding (i)
the amount of Mandatory Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise required hereunder, (ii) whether any
conditions specified in Section 4.2 are then satisfied, (iii) whether a Default
or an Event of Default then exists, (iv) failure for any such request or deemed
request for Revolving Loan to be made by the time otherwise required in Section
2.1(b), (v) the date of such Mandatory Borrowing, or (vi) any reduction in
the
Revolving Committed Amount after any such Letter of Credit may have been drawn
upon; provided,
however,
that
in the event any such Mandatory Borrowing should be less than the minimum amount
for borrowings of Revolving Loans otherwise provided in Section 2.1(b)(ii),
the
Borrower shall pay to the Administrative Agent for its own account an
administrative fee of $500. In the event that any Mandatory Borrowing
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower), then each such Lender hereby
agrees that it shall forthwith fund (as of the date the Mandatory Borrowing
would otherwise have occurred, but adjusted for any payments received from
the
Borrower on or after such date and prior to such purchase) its Participation
Interests in the outstanding LOC Obligations; provided, further,
that in the
event any Revolving Lender shall fail to fund its Participation Interest on
the
day the Mandatory Borrowing would otherwise have occurred, then the amount
of
such Lender’s unfunded Participation Interest therein shall bear interest
payable to the applicable Issuing Lender upon demand, at the rate equal to,
if
paid within two (2) Business Days of such date, the Federal Funds Effective
Rate, and thereafter at a rate equal to the Alternate Base Rate.
(f) Designation
of Subsidiaries
as Account Parties. Notwithstanding anything to the contrary
set forth in this Agreement, including without limitation Section 2.3(a), a
Letter of Credit issued hereunder may contain a statement to the effect that
such Letter of Credit is issued for the account of a Subsidiary, provided that
notwithstanding such statement, the Borrower shall be the actual account party
for all purposes of this Agreement for such Letter of Credit and such statement
shall not affect the Borrower’s reimbursement obligations hereunder with respect
to such Letter of Credit.
(g) Modification,
Extension. The issuance of any supplement, modification,
amendment, renewal, or extension to any Letter of Credit shall, for purposes
hereof, be treated in all respects the same as the issuance of a new Letter
of
Credit hereunder.
(h) Uniform
Customs and
Practices/International Standby Practices 1998. The Letters of
Credit shall be subject to The Uniform Customs and Practice for Documentary
Credits (the “UCP”) or the
International Standby Practices 1998 (the “ISP98”), in either
case as published as of the date of issue by the International Chamber of
Commerce, in which case the UCP or ISP98, as applicable, may be incorporated
therein and deemed in all respects to be a part thereof.
Section
2.4 Fees.
(a) Facility
Fee. In consideration of the Revolving Commitments, the
Borrower agrees to pay to the Administrative Agent for the ratable benefit
of
the Revolving Lenders a facility fee (the “Facility Fee”) in an
amount equal to the Applicable Percentage per annum on the Revolving Committed
Amount, regardless of usage. The Facility Fee shall be payable
quarterly in arrears on the 15th day following the last day of each calendar
quarter for the prior calendar quarter and upon termination of the applicable
Commitments.
(b) Letter
of Credit
Fees. In consideration of issuance of standby Letters of Credit
hereunder, the Borrower agrees to pay to the applicable Issuing Lender (i)
a fee
(the “Standby Letter
of Credit Fee”) on such Lender’s Revolving Commitment Percentage of the
average daily maximum amount available to be drawn under each such standby
Letter of Credit computed at a per annum rate for each day from the date of
issuance to the date of expiration equal to the Applicable Percentage, (ii)
a
fee (the “Trade Letter
of Credit Fee”) on such Lender’s Revolving Commitment Percentage of the
average daily maximum amount available to be drawn under each such trade Letter
of Credit computed at a per annum rate for each day from the date of issuance
to
the date of expiration equal to the Applicable Percentage and (iii) an
additional fronting fee (the “Fronting Fee”) of
one-eighth of one percent (0.125%) per annum on the average daily maximum amount
available to be drawn under each standby Letter of Credit issued by it (such
fronting fee shall be for the account of the applicable Issuing Lender without
sharing by the other Revolving Lenders). The applicable Issuing
Lender shall promptly pay over to the Administrative Agent for the ratable
benefit of the Revolving Lenders (including the applicable Issuing Lender)
the
Standby Letter of Credit Fee and the Trade Letter of Credit Fee. The
Standby Letter of Credit Fee, the Trade Letter of Credit Fee and the Fronting
Fee shall be payable quarterly in arrears on the 15th day following the last
day
of each calendar quarter for the prior calendar quarter.
(c) Issuing
Lender
Fees. In addition to the Standby Letter of Credit Fees and
Trade Letter of Credit Fees payable pursuant to subsection (b) above, the
Borrower shall pay to the applicable Issuing Lender for its own account without
sharing by the other Revolving Lenders the reasonable and customary charges
from
time to time of the applicable Issuing Lender with respect to the amendment,
transfer, administration, cancellation and conversion of, and drawings under,
such Letters of Credit (collectively, the “Issuing Lender
Fees”).
(d) Administrative
Fee. The Borrower agrees to pay to the Administrative Agent
the annual administrative fee as described in the Engagement
Letter.
Section
2.5 Reduction
of the Revolving Commitments.
(a) Voluntary
Reductions. The Borrower shall have the right to terminate or
permanently reduce the unused portion of the Revolving Committed Amount at
any
time or from time to time upon not less than five Business Days’ prior notice to
the Administrative Agent (which shall notify the Lenders thereof as soon as
practicable) of each such termination or reduction, which notice shall specify
the effective date thereof and the amount of any such reduction which shall
be
in a minimum amount of $3,000,000 or a whole multiple of $1,000,000 in excess
thereof and shall be irrevocable and effective upon receipt by the
Administrative Agent, provided that no
such
reduction or termination shall be permitted if after giving effect thereto,
and
to any prepayments of the Loans made on the effective date thereof, the sum
of
the then outstanding aggregate principal amount of the Revolving Loans plus outstanding
Swingline Loans plus LOC Obligations
would exceed the Revolving Committed Amount after such proposed
reduction.
(b) Maturity
Date. The Revolving Commitments, the LOC Commitments and the
Swingline Commitment shall automatically terminate on the Maturity Date; subject
to the provisions of Section 2.22.
Section
2.6 Prepayments.
(a) Optional
Prepayments. The Borrower shall have the right to prepay the
Revolving Loans or Term Loans in whole or in part from time to time; provided, however,
that (i)
each partial prepayment of Alternate Base Rate Loans or LIBOR Rate Loans shall
be in a minimum principal amount of $500,000 and integral
multiples of $250,000 in excess thereof and (ii) each partial prepayment of
Index Rate Loans or Swingline Loans shall be in a minimum principal amount
of $100,000 and
integral multiples of $100,000 in excess
thereof. The Borrower shall give irrevocable written notice (or
telephone notice promptly confirmed in writing which confirmation may be by
fax)
to the Administrative Agent (which shall notify the Lenders thereof as soon
as
practicable) not later than 11:00 A.M. (Charlotte, North Carolina time) on
the
date of the requested prepayment in the case of Alternate Base Rate Loans,
Index
Rate Loans or Swingline Loans, and on the third Business Day prior to the date
of the requested prepayment in the case of LIBOR Rate Loans. Subject
to the foregoing terms, amounts prepaid under this Section 2.6(a) shall be
applied as the Borrower may elect. Within the parameters of the
applications to Loans set forth above, prepayments shall be applied first to
Alternate Base Rate Loans, second to Index Rate Loans and then to LIBOR Rate
Loans in direct order of Interest Period maturities. All prepayments
under this Section 2.6(a) shall be subject to Section 2.16, but otherwise
without premium or penalty. Interest on the principal amount prepaid
shall be payable (a) at the time of such prepayment with respect to LIBOR Rate
Loans, along with any costs then due and payable under Section 2.16, and (b)
with respect to Alternate Base Rate Loans, Index Rate Loans and Swingline Loans,
on the next occurring Interest Payment Date that would have occurred had such
loan not been prepaid or, at the request of the Administrative Agent, interest
on the principal amount of any Alternate Base Rate Loans, Index Rate Loans
or
Swingline Loans prepaid shall be payable on any date that a prepayment is made
hereunder to the date of prepayment. Amounts prepaid on the Revolving
Loans and Swingline Loans may be reborrowed in accordance with the terms
hereof.
(b) Mandatory
Prepayments. If at any time after the Closing Date, the sum of
the aggregate principal amount of outstanding Revolving Loans plus outstanding
Swingline Loans plus LOC Obligations
shall exceed the Revolving Committed Amount, the Borrower immediately shall
prepay the Revolving Loans and (after all Revolving Loans and Swingline Loans
have been repaid) cash collateralize the LOC Obligations, in an amount
sufficient to eliminate such excess. Such prepayments shall be
applied first to Swingline Loans, second to Revolving Loans that are Alternate
Base Rate Loans, third to Revolving Loans that are Index Rate Loans and fourth
to Revolving Loans that are LIBOR Rate Loans in direct order of Interest Period
maturities. All prepayments under this Section 2.6(b) shall be
subject to Section 2.16 and be accompanied by interest on the principal amount
prepaid to the date of prepayment. Amounts prepaid on Revolving Loans
and Swingline Loans may be reborrowed in accordance with the terms
hereof.
Section
2.7 Minimum
Borrowing Amounts and Principal Amounts of Tranches.
(a) Each
Alternate Base Rate Loan borrowing and each LIBOR Rate Loan borrowing shall
be
in a minimum amount of $500,000 and whole multiples of $250,000 in excess
thereof.
(b) Each
Swingline Loan borrowing and each Index Rate Loan borrowing shall be in a
minimum amount of $100,000 and whole multiples of $100,000 in excess
thereof.
(c) All
borrowings, payments and prepayments in respect of Revolving Loans shall be
in
such amounts and be made pursuant to such elections so that after giving effect
thereto the aggregate principal amount of the Revolving Loans comprising any
LIBOR Tranche shall either be zero or shall not be less than $500,000 or a
whole
multiple of $250,000 in excess thereof.
Section
2.8 Interest
Payments; Default Interest; Interest Payment Dates.
(a) Interest
Payments. Subject to the provisions of Section 2.8(b), all
Loans shall bear interest as follows:
(i) Alternate
Base Rate
Loans. During such periods as any Loans shall be comprised of
Alternate Base Rate Loans, each such Alternate Base Rate Loan shall bear
interest at a per annum rate equal to the sum of the Alternate Base Rate plus the Applicable
Percentage;
(ii) Index
Rate
Loans. During such periods as any Loans shall be comprised of
Index Rate Loans, each such Index Rate Loan shall bear interest at a per annum
rate equal to the sum of the Index Rate plus the Applicable
Percentage; and
(iii) LIBOR
Rate
Loans. During such periods as any Loans shall be comprised of
LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interest at a per annum
rate equal to the sum of the LIBOR Rate plus the Applicable
Percentage.
(b) Default
Interest. Upon the occurrence, and during the continuance, of
a Default or an Event of Default, the principal of and, to the extent permitted
by law, interest on the Loans and any other amounts owing hereunder or under
the
other Credit Documents shall (at the option of the Administrative Agent) bear
interest, payable on demand, at a per annum rate 2% greater than the applicable
rate then in effect or, if no rate is then in effect, at a per annum rate 2%
greater than the Alternate Base Rate. Upon and during the continuance
of an Event of Default, all LIBOR Rate Loans shall be automatically converted
to
Alternate Base Rate Loans on the last day of the applicable Interest Period
for
any such LIBOR Rate Loans, all Index Rate Loans shall be automatically converted
to Alternate Base Rate Loans to take effect immediately, and all Index Rate
Swingline Loans shall be automatically converted to ABR Swingline Loans to
take
effect immediately.
(c) Interest
Payment
Date. Interest on Loans shall be payable in arrears on each
Interest Payment Date, subject to Section 2.11.
Section
2.9 Conversion
Options.
(a) The
Borrower may elect from time to time to convert Alternate Base Rate Loans or
Index Rate Loans to LIBOR Rate Loans by giving irrevocable written notice (or
telephone notice promptly confirmed in writing which confirmation may be by
fax)
to the Administrative Agent not later than 11:00 A.M. (Charlotte, North Carolina
time) on the third Business Day prior to the date of the requested
conversion. A form of Notice of Conversion/ Extension is attached as
Schedule
2.9. If the date upon which an Alternate Base Rate Loan or
Index Rate Loan is to be converted to a LIBOR Rate Loan is not a Business Day,
then such conversion shall be made on the next succeeding Business Day and
during the period from such last day of an Interest Period to such succeeding
Business Day such Loan shall bear interest as if it were an Alternate Base
Rate
Loan or Index Rate Loan, as applicable. All or any part of
outstanding Alternate Base Rate Loans or Index Rate Loans may be converted
as
provided herein, provided that (i)
no
Loan may be converted into a LIBOR Rate Loan when any Default or Event of
Default has occurred and is continuing and (ii) partial conversions shall be
in
an aggregate principal amount of $3,000,000 or a whole multiple of $1,000,000
in
excess thereof.
(b) Any
LIBOR
Rate Loans may be continued as such upon the expiration of an Interest Period
with respect thereto by compliance by the Borrower with the notice provisions
contained in Section 2.9(a); provided, that no
LIBOR Rate Loan may be continued as such when any Default or Event of Default
has occurred and is continuing, in which case such Loan shall be automatically
converted to an Alternate Base Rate Loan at the end of the applicable Interest
Period with respect thereto. If the Borrower shall fail to give
timely notice of an election to continue a LIBOR Rate Loan, or the continuation
of LIBOR Rate Loans is not permitted hereunder, such LIBOR Rate Loans shall
be
automatically converted to Alternate Base Rate Loans at the end of the
applicable Interest Period with respect thereto.
Section
2.10 Computation
of Interest and Fees.
(a) Interest
payable hereunder with respect to Alternate Base Rate Loans based on the Prime
Rate shall be calculated on the basis of a year of 365 days (or 366 days, as
applicable) for the actual days elapsed. All other interest and fees
and all other interest amounts payable hereunder shall be calculated on the
basis of a 360 day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of each determination of a LIBOR Rate on the Business Day of the
determination thereof. Any change in the interest rate on a Loan
resulting from a change in the Alternate Base Rate shall become effective as
of
the opening of business on the day on which such change in the Alternate Base
Rate shall become effective. Any change in the interest rate on an
Index Rate Loan or Index Rate Swingline Loan resulting from a change in the
Index Rate shall become effective as of the opening of business on the day
on
which such change in the Index Rate shall become effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of the effective date and the amount of each such change.
(b) Each
determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower
and
the Lenders in the absence of manifest error. The Administrative
Agent shall, at the request of the Borrower, deliver to the Borrower a statement
showing the computations used by the Administrative Agent in determining any
interest rate.
(c) It
is the
intent of the Lenders and the Credit Parties to conform to and contract in
strict compliance with applicable usury law from time to time in
effect. All agreements between the Lenders and the Credit Parties are
hereby limited by the provisions of this paragraph which shall override and
control all such agreements, whether now existing or hereafter arising and
whether written or oral. In no way, nor in any event or contingency
(including but not limited to prepayment or acceleration of the maturity of
any
obligation), shall the interest taken, reserved, contracted for, charged, or
received under this Credit Agreement, under the Notes or otherwise, exceed
the
maximum nonusurious amount permissible under applicable law. If, from
any possible construction of any of the Credit Documents or any other document,
interest would otherwise be payable in excess of the maximum nonusurious amount,
any such construction shall be subject to the provisions of this paragraph
and
such interest shall be automatically reduced to the maximum nonusurious amount
permitted under applicable law, without the necessity of execution of any
amendment or new document. If any Lender shall ever receive anything
of value which is characterized as interest on the Loans under applicable law
and which would, apart from this provision, be in excess of the maximum
nonusurious amount, an amount equal to the amount which would have been
excessive interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Loans and not to the payment of interest, or
refunded to the Borrower or the other payor thereof if and to the extent such
amount which would have been excessive exceeds such unpaid principal amount
of
the Loans. The right to demand payment of the Loans or any other
Indebtedness evidenced by any of the Credit Documents does not include the
right
to receive any interest which has not otherwise accrued on the date of such
demand, and the Lenders do not intend to charge or receive any unearned interest
in the event of such demand. All interest paid or agreed to be paid
to the Lenders with respect to the Loans shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full stated term (including any renewal or extension) of the Loans so that
the
amount of interest on account of such indebtedness does not exceed the maximum
nonusurious amount permitted by applicable law.
Section
2.11 Pro
Rata
Treatment and Payments.
(a) Payments
Generally and Pro
Rata Treatment. Each borrowing of Revolving Loans and any
reduction of the Revolving Commitments shall be made prorata
according to the
respective Commitment Percentages of the Revolving Lenders. Subject
to Section 2.11(b) hereof, each payment under this Agreement or any Note shall
be applied, first, to any fees then due and owing by the Borrower pursuant
to
Section 2.4, second, to interest then due and owing in respect of the Notes
of
the Borrower and, third, to principal then due and owing hereunder and under
the
Notes of the Borrower. Each payment on account of any fees pursuant
to Section 2.4 shall be made prorata
in accordance
with the respective amounts due and owing (except as to the portion of the
Standby Letter of Credit Fee or Trade Letter of Credit Fee retained by the
applicable Issuing Lender, the Issuing Lender Fees, the Fronting Fee and fees
payable to the Administrative Agent). Each payment by the Borrower on
account of principal of and interest on the Swingline Loans shall be made to
the
Swingline Lender. Each payment (other than prepayments) by the
Borrower on account of principal of and interest on the Revolving Loans and
the
Term Loan shall be made prorata
according to the
respective amounts due and owing in accordance with Section 2.6(a)
hereof. Each optional prepayment on account of principal of the
Revolving Loans and the Term Loan shall be applied to such of the Revolving
Loans and the Term Loan as the Borrower may designate (to be applied prorata
among the
Revolving Lenders and Term Loan Lenders, as applicable); provided, that
prepayments made pursuant to Section 2.14 shall be applied in accordance with
such section. Each mandatory prepayment on account of principal of
the Revolving Loans and the Term Loan shall be applied in accordance with
Section 2.6(b). All payments (including prepayments) to be made by
the Borrower on account of principal, interest and fees shall be made without
defense, set-off or counterclaim (except as provided in Section 2.17(b)) and
shall be made to the Administrative Agent for the account of the Lenders at
the
Administrative Agent’s office specified on Schedule 9.2 in
Dollars and in immediately available funds not later than 1:00 P.M. (Charlotte,
North Carolina time) on the date when due. The Administrative Agent
shall distribute such payments to the Lenders entitled thereto promptly upon
receipt in like funds as received. If any payment hereunder (other
than payments on the LIBOR Rate Loans) becomes due and payable on a day other
than a Business Day, such payment shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon
shall
be payable at the then applicable rate during such extension. If any
payment on a LIBOR Rate Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day.
(b) Allocation
of Payments After
Acceleration. Notwithstanding any other provisions of this
Credit Agreement to the contrary, after the acceleration of the Credit Party
Obligations pursuant to Section 7.2, all amounts collected or received by the
Administrative Agent or any Lender on account of the Credit Party Obligations
or
any other amounts outstanding under any of the Credit Documents shall be paid
over or delivered to the Administrative Agent and applied as follows:
FIRST,
to
the payment of all reasonable out-of-pocket costs and expenses (including
reasonable attorneys’ fees) of the Administrative Agent in connection with
enforcing the rights of the Lenders under the Credit Documents and any
protective advances made by the Administrative Agent;
SECOND,
to payment of any fees owed to the Administrative Agent;
THIRD,
to
the payment of all reasonable out-of-pocket costs and expenses (including
reasonable attorneys’ fees) of each of the Lenders in connection with enforcing
its rights under the Credit Documents or otherwise with respect to the Credit
Party Obligations owing to such Lender;
FOURTH,
to the payment of all outstanding Swingline Loans and accrued interest
thereon;
FIFTH,
to
the payment of all of the Credit Party Obligations consisting of accrued fees
and interest;
SIXTH,
to
the payment of the outstanding principal amount of the Credit Party Obligations
(including the payment or cash collateralization of the outstanding LOC
Obligations);
SEVENTH,
to all other Credit Party Obligations and other obligations that shall have
become due and payable under the Credit Documents or otherwise and not repaid
pursuant to clauses “FIRST” through “SIXTH” above; and
EIGHTH,
to the payment of the surplus, if any, to whomever may be lawfully entitled
to
receive such surplus.
In
carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Lenders shall receive an amount equal
to
its pro rata share (based on the proportion that the then outstanding Loans
and
LOC Obligations held by such Lender bears to the aggregate then outstanding
Loans and LOC Obligations) of amounts available to be applied pursuant to
clauses “THIRD”, “FOURTH”, “FIFTH”, “SIXTH” and “SEVENTH” above; and (iii) to
the extent that any amounts available for distribution pursuant to clause
“SIXTH” above are attributable to the issued but undrawn amount of outstanding
Letters of Credit, such amounts shall be held by the Administrative Agent in
a
cash collateral account and applied (A) first, to reimburse the Issuing Lender
from time to time for any drawings under such Letters of Credit and (B) then,
following the expiration of all Letters of Credit, to all other obligations
of
the types described in clauses “SIXTH” and “SEVENTH” above in the manner
provided in this Section 2.11(b).
Section
2.12 Non-Receipt
of Funds by the Administrative Agent.
(a) Unless
the Administrative Agent shall have been notified in writing by a Lender prior
to the date a Loan is to be made by such Lender (which notice shall be effective
upon receipt) that such Lender does not intend to make the proceeds of such
Loan
available to the Administrative Agent, the Administrative Agent may assume
that
such Lender has made such proceeds available to the Administrative Agent on
such
date, and the Administrative Agent may in reliance upon such assumption (but
shall not be required to) make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to
the Administrative Agent, the Administrative Agent shall be able to recover
such
corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent will promptly notify the Borrower, and the
Borrower shall immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover
from the Lender or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative Agent at
a per
annum rate equal to (i) from the Borrower at the applicable rate for the
applicable borrowing pursuant to the Notice of Borrowing and (ii) from a Lender
at the Federal Funds Effective Rate.
(b) Unless
the Administrative Agent shall have been notified in writing by the Borrower,
prior to the date on which any payment is due from it hereunder (which notice
shall be effective upon receipt) that the Borrower does not intend to make
such
payment, the Administrative Agent may assume that the Borrower has made such
payment when due, and the Administrative Agent may in reliance upon such
assumption (but shall not be required to) make available to each Lender on
such
payment date an amount equal to the portion of such assumed payment to which
such Lender is entitled hereunder, and if the Borrower has not in fact made
such
payment to the Administrative Agent, such Lender shall, on demand, repay to
the
Administrative Agent the amount made available to such Lender. If
such amount is repaid to the Administrative Agent on a date after the date
such
amount was made available to such Lender, such Lender shall pay to the
Administrative Agent on demand interest on such amount in respect of each day
from the date such amount was made available by the Administrative Agent to
such
Lender to the date such amount is recovered by the Administrative Agent at
a per
annum rate equal to the Federal Funds Effective Rate.
(c) A
certificate of the Administrative Agent submitted to the Borrower or any Lender
with respect to any amount owing under this Section 2.12 shall be conclusive
in
the absence of manifest error.
Section
2.13 Inability
to Determine Interest Rate.
Notwithstanding
any other provision of this Agreement, if (i) the Administrative Agent shall
reasonably determine (which determination shall be conclusive and binding absent
manifest error) that, by reason of circumstances affecting the relevant market,
reasonable and adequate means do not exist for ascertaining LIBOR for an
Interest Period, or (ii) the Required Lenders shall reasonably determine (which
determination shall be conclusive and binding absent manifest error) that the
LIBOR Rate does not adequately and fairly reflect the cost to such Lenders
of
funding LIBOR Rate Loans that the Borrower has requested be outstanding as
a
LIBOR Tranche during an Interest Period, the Administrative Agent shall
forthwith give telephone notice of such determination, confirmed in writing,
to
the Borrower, and the Lenders at least two Business Days prior to the first
day
of such Interest Period. Unless the Borrower shall have notified the
Administrative Agent upon receipt of such telephone notice that it wishes to
rescind or modify its request regarding such LIBOR Rate Loans, any Loans that
were requested to be made as LIBOR Rate Loans shall be made as Alternate Base
Rate Loans and any Loans that were requested to be converted into or continued
as LIBOR Rate Loans shall be converted into Alternate Base Rate
Loans. Until any such notice has been withdrawn by the Administrative
Agent, no further Loans shall be made as, continued as, or converted into,
LIBOR
Rate Loans for the Interest Periods so affected.
Section
2.14 Illegality.
Notwithstanding
any other provision of this Agreement, if the adoption of or any change in
any
Requirement of Law or in the interpretation or application thereof by the
relevant Governmental Authority to any Lender shall make it unlawful for such
Lender or its LIBOR Lending Office to make or maintain LIBOR Rate Loans as
contemplated by this Agreement or to obtain in the interbank eurodollar market
through its LIBOR Lending Office the funds with which to make such Loans, (a)
such Lender shall promptly notify the Administrative Agent and the Borrower
thereof, (b) the commitment of such Lender hereunder to make LIBOR Rate Loans
or
continue LIBOR Rate Loans as such shall forthwith be suspended until the
Administrative Agent shall give notice that the condition or situation which
gave rise to the suspension shall no longer exist, and (c) such Lender’s Loans
then outstanding as LIBOR Rate Loans, if any, shall be converted on the last
day
of the Interest Period for such Loans or within such earlier period as required
by law as Alternate Base Rate Loans. The Borrower hereby agrees
promptly to pay any Lender, upon its demand, any additional amounts necessary
to
compensate such Lender for actual and direct costs (but not including
anticipated profits) reasonably incurred by such Lender in making any repayment
in accordance with this Section including, but not limited to, any interest
or
fees payable by such Lender to lenders of funds obtained by it in order to
make
or maintain its LIBOR Rate Loans hereunder. A certificate as to any
additional amounts payable pursuant to this Section submitted by such Lender,
through the Administrative Agent, to the Borrower shall be conclusive in the
absence of manifest error. Each Lender agrees to use reasonable
efforts (including reasonable efforts to change its LIBOR Lending Office) to
avoid or to minimize any amounts which may otherwise be payable pursuant to
this
Section; provided, however,
that such
efforts shall not cause the imposition on such Lender of any additional costs
or
legal or regulatory burdens deemed by such Lender in its sole discretion to
be
material.
Section
2.15 Requirements
of Law.
(a) If
the
adoption of or any change in any Requirement of Law or in the interpretation
or
application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the date hereof:
(i) shall
subject such Lender to any tax of any kind whatsoever with respect to any Letter
of Credit or any application relating thereto, any LIBOR Rate Loan made by
it,
or change the basis of taxation of payments to such Lender in respect thereof
(except for changes in the rate of tax on the overall net income of such
Lender);
(ii) shall
impose, modify or hold applicable any reserve, special deposit, compulsory
loan
or similar requirement against assets held by, deposits or other liabilities
in
or for the account of, advances, loans or other extensions of credit by, or
any
other acquisition of funds by, any office of such Lender which is not otherwise
included in the determination of the LIBOR Rate hereunder; or
(iii) shall
impose on such Lender any other condition;
and
the
result of any of the foregoing is to increase the cost to such Lender of making
or maintaining LIBOR Rate Loans or the Letters of Credit or to reduce any amount
receivable hereunder or under any Note, then, in any such case, the Borrower
shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such additional cost or reduced amount
receivable which such Lender reasonably deems to be material as determined
by
such Lender with respect to its LIBOR Rate Loans or Letters of
Credit. A certificate as to any additional amounts payable pursuant
to this Section submitted by such Lender, through the Administrative Agent,
to
the Borrower shall be conclusive in the absence of manifest
error. Each Lender agrees to use reasonable efforts (including
reasonable efforts to change its Domestic Lending Office or LIBOR Lending
Office, as the case may be) to avoid or to minimize any amounts which might
otherwise be payable pursuant to this paragraph of this Section; provided, however,
that such
efforts shall not cause the imposition on such Lender of any additional costs
or
legal or regulatory burdens deemed by such Lender in its sole discretion to
be
material.
(b) If
any
Lender shall have reasonably determined in good faith that the adoption of
or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any central
bank
or Governmental Authority made subsequent to the date hereof does or shall
have
the effect of reducing the rate of return on such Lender’s or such corporation’s
capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender’s or such
corporation’s policies with respect to capital adequacy) by an amount reasonably
deemed by such Lender to be material, then from time to time, within fifteen
(15) days after demand by such Lender, the Borrower shall pay to such Lender
such additional amount as shall be certified by such Lender as being required
to
compensate it for such reduction. Such a certificate as to any
additional amounts payable under this Section submitted by a Lender (which
certificate shall include a description of the basis for the computation),
through the Administrative Agent, to the Borrower shall be conclusive absent
manifest error. In determining such amount, such Lender may use any
method of averaging and attribution that it shall reasonably deem
applicable.
(c) The
agreements in this Section 2.15 shall survive the termination of this Agreement
and payment of the Notes and all other amounts payable hereunder.
Section
2.16 Indemnity.
The
Borrower hereby agrees to indemnify each Lender and to hold such Lender harmless
from any funding loss or expense which such Lender may sustain or incur as
a
consequence of (a) default by the Borrower in payment of the principal amount
of
or interest on any Loan by such Lender in accordance with the terms hereof,
(b)
default by the Borrower in accepting a borrowing after the Borrower has given
a
notice in accordance with the terms hereof, (c) default by the Borrower in
making any prepayment after the Borrower has given a notice in accordance with
the terms hereof, and/or (d) the making by the Borrower of any payment or
prepayment of a Loan, or the conversion thereof, on a day which is not the
last
day of the Interest Period with respect thereto, in each case including, but
not
limited to, any such loss or expense arising from interest or fees payable
by
such Lender to lenders of funds obtained by it in order to maintain its Loans
hereunder. A certificate as to any additional amounts payable
pursuant to this Section submitted by any Lender, through the Administrative
Agent, to the Borrower (which certificate must be delivered to the
Administrative Agent within thirty days following such default, prepayment
or
conversion) shall be conclusive in the absence of manifest error. The
agreements in this Section shall survive termination of this Agreement and
payment of the Notes and all other amounts payable hereunder.
Section
2.17 Taxes.
(a) All
payments made by the Borrower hereunder or under any Note will be, except as
provided in Section 2.17(b), made free and clear of, and without deduction
or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by
any
Governmental Authority or by any political subdivision or taxing authority
thereof or therein with respect to such payments (but excluding any tax imposed
on or measured by the net income or profits of a Lender) and all interest,
penalties or similar liabilities with respect thereto (all such non-excluded
taxes, levies, imposts, duties, fees, assessments or other charges being
referred to collectively as “Taxes”). If
any Taxes are so levied or imposed, the Borrower agrees to pay the full amount
of such Taxes, and such additional amounts as may be necessary so that every
payment of all amounts due under this Agreement or under any Note, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein or in such Note. The Borrower will
furnish to the Administrative Agent as soon as practicable after the date the
payment of any Taxes is due pursuant to applicable law certified copies (to
the
extent reasonably available and required by law) of tax receipts evidencing
such
payment by the Borrower. The Borrower agrees to indemnify and hold
harmless each Lender, and reimburse such Lender upon its written request, for
the amount of any Taxes so levied or imposed and paid by such Lender but
excluding any interest or penalties caused by such Lender’s failure to pay any
such taxes when due.
(b) Each
Lender that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) agrees to deliver to the Borrower and the
Administrative Agent on or prior to the Closing Date, or in the case of a Lender
that is an assignee or transferee of an interest under this Agreement pursuant
to Section 9.6(c) (unless the respective Lender was already a Lender hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, two accurate and complete original signed
copies of Internal Revenue Service Form ▇-▇ ▇▇▇, ▇-▇ ECI or W-8 IMY, as
applicable (or successor forms) certifying such Lender’s entitlement to a
complete exemption from United States withholding tax with respect to payments
to be made under this Agreement and under any Note. In addition, each
Lender agrees that it will deliver upon the Borrower’s request updated versions
of the foregoing, as applicable, whenever the previous certification has become
obsolete or inaccurate in any material respect, together with such other forms
as may be required in order to confirm or establish the entitlement of such
Lender to a continued exemption from or reduction in United States withholding
tax with respect to payments under this Agreement and any
Note. Notwithstanding anything to the contrary contained in Section
2.17(a), but subject to the immediately succeeding sentence, (x) the Borrower
shall be entitled, to the extent it is required to do so by law, to deduct
or
withhold Taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, fees or other amounts
payable hereunder for the account of any Lender which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for U.S.
Federal income tax purposes to the extent that such Lender has not provided
to
the Borrower U.S. Internal Revenue Service Forms that establish a complete
exemption from such deduction or withholding and (y) the Borrower shall not
be
obligated pursuant to Section 2.17(a) hereof to gross-up payments to be made
to
a Lender in respect of Taxes imposed by the United States if such Lender has
not
provided to the Borrower the Internal Revenue Service Forms required to be
provided to the Borrower pursuant to this Section
2.17(b). Notwithstanding anything to the contrary contained in the
preceding sentence or elsewhere in this Section 2.17, the Borrower agrees to
pay
additional amounts and to indemnify each Lender in the manner set forth in
Section 2.17(a) (without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any amounts deducted or withheld
by
it as described in the immediately preceding sentence as a result of any changes
after the Closing Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating
to
the deducting or withholding of Taxes.
(c) Each
Lender agrees to use reasonable efforts (including reasonable efforts to change
its Domestic Lending Office or LIBOR Lending Office, as the case may be) to
avoid or to minimize any amounts which might otherwise be payable pursuant
to
this Section; provided, however,
that such
efforts shall not cause the imposition on such Lender of any additional costs
or
legal or regulatory burdens deemed by such Lender in its sole discretion to
be
material.
(d) If
the
Borrower pays any additional amount pursuant to this Section 2.17 with respect
to a Lender, such Lender shall use reasonable efforts to obtain a refund of
tax
or credit against its tax liabilities on account of such payment; provided that such
Lender shall have no obligation to use such reasonable efforts if either (i)
it
is in an excess foreign tax credit position or (ii) it believes in good faith,
in its sole discretion, that claiming a refund or credit would cause adverse
tax
consequences to it. In the event that such Lender receives such a
refund or credit, such Lender shall pay to the Borrower an amount that such
Lender reasonably determines is equal to the net tax benefit obtained by such
Lender as a result of such payment by the Borrower. In the event that
no refund or credit is obtained with respect to the Borrower’s payments to such
Lender pursuant to this Section 2.17(d), then such Lender shall upon request
provide a certification that such Lender has not received a refund or credit
for
such payments. Nothing contained in this Section 2.17(d) shall
require a Lender to disclose or detail the basis of its calculation of the
amount of any tax benefit or any other amount or the basis of its determination
referred to in the proviso to the first sentence of this Section 2.17(d) to
the
Borrower or any other party.
(e) The
agreements in this Section 2.17 shall survive the termination of this Agreement
and the payment of the Notes and all other amounts payable
hereunder.
Section
2.18 Indemnification;
Nature of Issuing Lender’s Duties.
(a) In
addition to its other obligations under Section 2.3, the Borrower hereby agrees
to protect, indemnify, pay and save the applicable Issuing Lender harmless
from
and against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys’ fees) that the applicable
Issuing Lender may incur or be subject to as a consequence, direct or indirect,
of (i) the issuance of any Letter of Credit or (ii) the failure of the
applicable Issuing Lender to honor a drawing under a Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any present
or
future de jure or de facto government or governmental authority (all such acts
or omissions, herein called “Government
Acts”).
(b) As
between the Borrower and the applicable Issuing Lender, the Borrower shall
assume all risks of the acts, omissions or misuse of any Letter of Credit by
the
beneficiary thereof. The applicable Issuing Lender shall not be
responsible: (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of any Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or
in
part, that may prove to be invalid or ineffective for any reason; (iii) for
failure of the beneficiary of a Letter of Credit to comply fully with conditions
required in order to draw upon a Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, whether or not they be in cipher;
(v) for errors in interpretation of technical terms; (vi) for any loss or
delay in the transmission or otherwise of any document required in order to
make
a drawing under a Letter of Credit or of the proceeds thereof; and (vii) for
any
consequences arising from causes beyond the control of the applicable Issuing
Lender, including, without limitation, any Government Acts. None of
the above shall affect, impair, or prevent the vesting of the applicable Issuing
Lender’s rights or powers hereunder.
(c) In
furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by the applicable Issuing
Lender, under or in connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put such applicable
Issuing Lender under any resulting liability to the Borrower. It is
the intention of the parties that this Agreement shall be construed and applied
to protect and indemnify the applicable Issuing Lender against any and all
risks
involved in the issuance of the Letters of Credit, all of which risks are hereby
assumed by the Borrower, including, without limitation, any and all risks of
the
acts or omissions, whether rightful or wrongful, of any Government
Authority. The applicable Issuing Lender shall not, in any way, be
liable for any failure by the applicable Issuing Lender or anyone else to pay
any drawing under any Letter of Credit as a result of any Government Acts or
any
other cause beyond the control of the applicable Issuing Lender.
(d) Nothing
in this Section 2.18 is intended to limit the reimbursement obligation of the
Borrower contained in Section 2.3(d) hereof. The obligations of the
Borrower under this Section 2.18 shall survive the termination of this
Agreement. No act or omissions of any current or prior beneficiary of
a Letter of Credit shall in any way affect or impair the rights of the
applicable Issuing Lender to enforce any right, power or benefit under this
Agreement.
(e) Notwithstanding
anything to the contrary contained in this Section 2.18, the Borrower shall
have
no obligation to indemnify the applicable Issuing Lender in respect of any
liability incurred by the applicable Issuing Lender arising out of the gross
negligence or willful misconduct of the applicable Issuing Lender (including
action not taken by the applicable Issuing Lender), as determined by a court
of
competent jurisdiction.
Section
2.19 Waiver
of
Notice.
(a) Except
as
otherwise expressly provided herein, the Borrower hereby waives notice of
occurrence of any Default or Event of Default (except to the extent notice
is
expressly required to be given pursuant to the terms of this Credit Agreement),
or of any demand for any payment under this Credit Agreement, notice of any
action at any time taken or omitted by the Administrative Agent or the Lenders
under or in respect of any of the Credit Party Obligations hereunder, any
requirement of diligence and, generally, all demands, notices and other
formalities of every kind in connection with this Credit
Agreement. The Borrower hereby assents to, and waives notice of, any
extension or postponement of the time for the payment of any of the Credit
Party
Obligations hereunder, the acceptance of any partial payment thereon, any
waiver, consent or other action or acquiescence by the Administrative Agent
or
the Lenders at any time or times in respect of any default by the Borrower
in
the performance or satisfaction of any term, covenant, condition or provision
of
this Credit Agreement or any other Credit Document, any and all other
indulgences whatsoever by the Administrative Agent or the Lenders in respect
of
any of the Credit Party Obligations hereunder, and the taking, addition,
substitution or release, in whole or in part, at any time or times, of any
security for any of such Credit Party Obligations or the addition, substitution
or release, in whole or in part, of any Borrower. Without limiting
the generality of the foregoing, the Borrower assents to any other action or
delay in acting or any failure to act on the part of the Administrative Agent
or
the Lenders, including, without limitation, any failure strictly or diligently
to assert any right or to pursue any remedy or to comply fully with applicable
laws or regulations thereunder which might, but for the provisions of this
Section 2.19, afford grounds for terminating, discharging or relieving the
Borrower, in whole or in part, from any of its obligations under this Agreement,
it being the intention of the Borrower that, so long as any of the Credit Party
Obligations remain unsatisfied, the obligations of the Borrower under this
Agreement shall not be discharged except by performance and then only to the
extent of such performance. The obligations of the Borrower under
this Agreement shall not be diminished or rendered unenforceable by any winding
up, reorganization, arrangement, liquidation, reconstruction or similar
proceeding with respect to any reconstruction or similar proceeding with respect
to the Borrower or any Lender.
(b) The
provisions of this Section 2.19 are made for the benefit of the Administrative
Agent and the Lenders and their respective successors and assigns, and may
be
enforced by any such Person from time to time against the Borrower as often
as
occasion therefor may arise and without requirement on the part of any Lender
first to marshal any of its claims or to resort to any other source or means
of
obtaining payment of any of the Credit Party Obligations or to elect any other
remedy. Without limiting the generality of the foregoing, the
Borrower hereby specifically waives the benefits of N.C. Gen. Stat. §§26-7
through 26-9, inclusive, to the extent applicable. The provisions of
this Section 2.19 shall remain in effect until all the Credit Party Obligations
hereunder shall have been paid in full or otherwise fully
satisfied. If at any time, any payment, or any part thereof, made in
respect of any of the Credit Party Obligations, is rescinded or must otherwise
be restored or returned by the Lenders upon the insolvency, bankruptcy or
reorganization of the Borrower, or otherwise, the provisions of this Section
2.19 will forthwith be reinstated and in effect as though such payment had
not
been made.
(c) Notwithstanding
any provision to the contrary contained herein or in any other of the Credit
Documents or Hedging Agreements, the obligations of the Borrower hereunder
shall
be limited to an aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance under Section 548 of
the
Bankruptcy Code or any comparable provisions of any applicable state
law.
Section
2.20 Defaulting
Lenders; Limitation on Claims.
(a) Generally. In
addition to the rights and remedies that may be available to the Administrative
Agent or the Borrower under this Agreement or applicable law, if at any time
a
Lender is a Defaulting Lender such Defaulting Lender’s right to participate in
the administration of the Loans, this Agreement and the other Credit Documents,
including without limitation, any right to vote in respect of, to consent to
or
to direct any action or inaction of the Administrative Agent or to be taken
into
account in the calculation of the Required Lenders, shall be suspended during
the pendency of such failure or refusal. If a Lender is a Defaulting
Lender because it has failed to make timely payment to the Administrative Agent
of any amount required to be paid to the Administrative Agent hereunder (without
giving effect to any notice or cure periods), in addition to other rights and
remedies which the Administrative Agent or the Borrower may have under the
immediately preceding provisions or otherwise, the Administrative Agent shall
be
entitled (i) to collect interest from such Defaulting Lender on such
delinquent payment for the period from the date on which the payment was due
until the date on which the payment is made at the Federal Funds Effective
Rate,
(ii) to withhold or setoff and to apply in satisfaction of the defaulted
payment and any related interest, any amounts otherwise payable to such
Defaulting Lender under this Agreement or any other Credit Document until such
defaulted payment and related interest has been paid in full and such default
no
longer exists and (iii) to bring an action or suit against such Defaulting
Lender in a court of competent jurisdiction to recover the defaulted amount
and
any related interest. Any amounts received by the Administrative
Agent in respect of a Defaulting Lender’s Loans shall not be paid to such
Defaulting Lender and shall be held uninvested by the Administrative Agent
and
either applied against the purchase price of such Loans under the following
subsection (b) or paid to such Defaulting Lender upon the default of such
Defaulting Lender being cured.
(b) Purchase
of Defaulting
Lender’s Commitment. Any Lender who is not a Defaulting Lender
shall have the right, but not the obligation, in its sole discretion, to acquire
all of a Defaulting Lender’s Commitment. If more than one Lender
exercises such right, each such Lender shall have the right to acquire such
proportion of such Defaulting Lender’s Commitment on a pro rata
basis. Upon any such purchase, the Defaulting Lender’s interest in
the Loans and its rights hereunder (but not its liability in respect thereof
or
under the Credit Documents or this Agreement to the extent the same relate
to
the period prior to the effective date of the purchase) shall terminate on
the
date of purchase, and the Defaulting Lender shall promptly execute all documents
reasonably requested to surrender and transfer such interest to the purchaser
thereof subject to and in accordance with the requirements set forth in
Section 9.6, including an appropriate Assignment and
Assumption. The purchase price for the Commitment of a Defaulting
Lender shall be equal to the sum of the amount of the principal balance of
the
Loans outstanding and owed by the Borrower to the Defaulting Lender, plus any
accrued interest with respect thereto, plus any fees or other amounts owed
by
the Borrower to the Defaulting Lender. Prior to payment of such
purchase price to a Defaulting Lender, the Administrative Agent shall apply
against such purchase price any amounts retained by the Administrative Agent
pursuant to the last sentence of the immediately preceding
subsection (a). The Defaulting Lender shall be entitled to
receive all amounts owed to it by the Borrower on account of principal of and
interest on the Loans and the Notes, and fees and other amounts due under the
Credit Documents which accrued prior to the date of the default by the
Defaulting Lender, to the extent the same are received by the Administrative
Agent from or on behalf of the Borrower. There shall be no recourse
against any Lender or the Administrative Agent for the payment of such sums
by
the Borrower except to the extent of the receipt of payments from any other
party or in respect of the Loans.
Section
2.21 Replacement
of Lenders.
If
any
Lender shall become affected by any of the changes or events described in
Sections 2.13, 2.14, 2.15 or 2.17 (any such Lender being hereinafter
referred to as a “Replaced Lender”) and
shall petition the Borrower for any increased cost or amounts thereunder, then
in such case, the Borrower may, upon at least five (5) Business Days’ notice to
the Administrative Agent and such Replaced Lender, designate a replacement
lender (a “Replacement
Lender”) acceptable to the Administrative Agent in its reasonable
discretion, to which such Replaced Lender shall, subject to its receipt (unless
a later date for the remittance thereof shall be agreed upon by the Borrower
and
the Replaced Lender) of all amounts owed to such Replaced Lender under
Sections 2.13, 2.14, 2.15 or 2.17 assign all (but not less than all) of its
rights, obligations, Loans and Commitments hereunder; provided, that all
amounts owed to such Replaced Lender by the Borrower (except liabilities which
by the terms hereof survive the payment in full of the Loans and termination
of
this Agreement) shall be paid in full as of the date of such
assignment. Upon any assignment by any Lender pursuant to this
Section 2.21 becoming effective, the Replacement Lender shall thereupon be
deemed to be a “Lender” for all purposes of this Agreement and such Replaced
Lender shall thereupon cease to be a “Lender” for all purposes of this Agreement
and shall have no further rights or obligations hereunder (other than pursuant
to Sections 2.13, 2.14, 2.15, 2.17 and 9.5 while such Replaced Lender was a
Lender).
Notwithstanding
any Replaced Lender’s failure or refusal to assign its rights, obligations,
Loans and Commitments under this Section 2.21, the Replaced Lender shall
cease to be a “Lender” for all purposes of this Agreement and the Replacement
Lender substituted therefor upon payment to the Replaced Lender by the
Replacement Lender of all amounts set forth in this Section 2.21 without
any further action of the Replaced Lender.
Section
2.22 Extension
of Maturity Date in respect of Revolving Commitments.
(a) Requests
for
Extension. The Borrower may, pursuant to this Section 2.22,
with respect to the Revolving Commitments only, request up to two one-year
extensions of the Maturity Date. The Borrower may at any time, but
not later than the date that is 45 days prior to the Maturity Date then in
effect hereunder in respect of the Revolving Commitments (the “Existing Maturity
Date”), by notice to the Administrative Agent (who shall promptly notify
the Lenders), request that each Revolving Lender extend such Lender’s Maturity
Date in respect of the Revolving Commitments (an “Extension Request”)
for an additional 365 days from the Existing Maturity Date; provided, however,
in no event
shall the Maturity Date of the Revolving Commitments be extended under this
Section 2.22 beyond the seventh anniversary of the Closing Date of this
Agreement.
(b) Lender
Elections to
Extend. Each Revolving Lender, acting in its sole and
individual discretion, shall, by notice to the Administrative Agent given not
later than the date (the “Notice Date”) that is
30 days following the date of the delivery of the applicable Extension Request
to the Administrative Agent, advise the Administrative Agent whether or not
such
Revolving Lender agrees to such extension (and each Revolving Lender that
determines not to so extend its Maturity Date (a “Non-Extending
Lender”) shall notify the Administrative Agent of such fact promptly
after such determination (but in any event no later than the Notice Date) and
any Revolving Lender that does not so advise the Administrative Agent on or
before the Notice Date shall be deemed to be a Non-Extending
Lender). The election of any Revolving Lender to agree to such
extension shall not obligate any other Revolving Lender to so
agree.
(c) Notification
by
Administrative Agent. The Administrative Agent shall notify
the Borrower of each Revolving Lender’s determination under this Section no
later than the date that is 10 days following the Notice Date (or, if such
date
is not a Business Day, on the next preceding Business Day).
(d) Additional
Commitment
Lenders. The Borrower shall have the right on or before the
Existing Maturity Date to replace each Non-Extending Lender with, and add as
“Revolving Lenders” under this Agreement in place thereof, one or more Eligible
Assignees (each, an “Additional Commitment
Lender”) as provided in Section 2.21, each of which Additional Commitment
Lenders shall have entered into an Assignment and Assumption pursuant to which
such Additional Commitment Lender shall, effective as of the Existing Maturity
Date, undertake a Revolving Commitment (and, if any such Additional Commitment
Lender is already a Lender, its Revolving Commitment shall be in addition to
any
other Commitment of such Lender hereunder on such date).
(e) Minimum
Extension
Requirement. If (and only if) the total of the Revolving
Commitments of the Revolving Lenders that have agreed so to extend their
Maturity Date and the additional Revolving Commitments of the Additional
Commitment Lenders shall be more than 50% of the aggregate amount of the
Revolving Commitments in effect immediately prior to the Existing Maturity
Date,
then, effective as of the date of such agreement by such Revolving Lenders,
the
Maturity Date in respect of the Revolving Commitments of each Extending Lender
and of each Additional Commitment Lender shall be extended to the date falling
365 days after the Existing Maturity Date (except that, if such date is not
a
Business Day, such Maturity Date as so extended shall be the next preceding
Business Day) and each Additional Commitment Lender shall thereupon become
a
“Revolving Lender” for all purposes of this Agreement.
(f) Conditions
to Effectiveness
of Extensions. Notwithstanding the foregoing, the extension of
the Maturity Date pursuant to this Section shall not be effective with respect
to any Revolving Lender unless:
(i) no
Default shall have occurred and be continuing on the date of such extension
and
after giving effect thereto;
(ii) the
representations and warranties contained in this Agreement are true and correct
on and as of the date of such extension and after giving effect thereto, as
though made on and as of such date (or, if any such representation or warranty
is expressly stated to have been made as of a specific date, as of such specific
date); and
(iii) on
the
Maturity Date of loans by each Non-Extending Lender, the Borrower shall prepay
any Revolving Loans outstanding on such date (and pay any additional amounts
required pursuant to Section 2.16) to the extent necessary to keep outstanding
Revolving Loans ratable with any revised Revolving Commitment Percentages of
the
respective Revolving Lenders effective as of such date.
(g) Conflicting
Provisions. This Section shall supersede any provisions in
Section 2.11 or 9.1 to the contrary.
Section
2.23 Increase
in Revolving Commitments.
(a) Request
for
Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Revolving Lenders), the
Borrower may from time to time, request an increase in the Revolving Commitments
by an amount (for all such requests in the aggregate) not exceeding ONE HUNDRED MILLION DOLLARS
($100,000,000.00); provided that
(i) any
such request for an increase shall be in a minimum amount of $50,000,000 and
in
integral multiples of $5,000,000, and (ii) the Borrower may make a maximum
of
two such requests. At the time of sending such notice, the Borrower
(in consultation with the Administrative Agent) shall specify the time period
within which each Revolving Lender is requested to respond (which shall in
no
event be less than ten Business Days from the date of delivery of such notice
to
the Revolving Lenders).
(b) Lender
Elections to
Increase. Each Revolving Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Revolving Commitment and, if so, whether by an amount equal to,
greater than, or less than its Revolving Commitment Percentage of such requested
increase. Any Revolving Lender not responding within such time period
shall be deemed to have declined to increase its Revolving
Commitment.
(c) Notification
by
Administrative Agent; Additional Revolving Lenders. The
Administrative Agent shall notify the Borrower and each Revolving Lender of
the
Revolving Lenders’ responses to each request made hereunder. To
achieve the full amount of a requested increase, and subject to the approval
of
the Administrative Agent, the Issuing Lender and the Swingline Lender (which
approvals shall not be unreasonably withheld), the Borrower may also invite
additional Eligible Assignees to become Revolving Lenders pursuant to a joinder
agreement in form and substance satisfactory to the Administrative Agent and
its
counsel.
(d) Effective
Date and
Allocations. If the Revolving Commitments are increased in
accordance with this Section, the Administrative Agent and the Borrower shall
determine the effective date (the “Revolving Credit
Increase
Effective Date”) and the final allocation of such
increase. The Administrative Agent shall promptly notify the Borrower
and the Revolving Lenders of the final allocation of such increase and the
Revolving Credit Increase Effective Date.
(e) Conditions
to Effectiveness
of Increase. As a condition precedent to such increase, the
Borrower shall deliver to the Administrative Agent a certificate of each Credit
Party dated as of the Revolving Credit Increase Effective Date (in sufficient
copies for each Lender) signed by a Responsible Officer of such Credit Party
(i)
certifying and attaching the resolutions adopted by such Credit Party approving
or consenting to such increase, and (ii) in the case of the Borrower, certifying
that, before and after giving effect to such increase, (A) the representations
and warranties contained in Article III and the other Credit Documents are
true
and correct on and as of the Revolving Credit Increase Effective Date, except
to
the extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date,
and except that for purposes of this Section 2.23, the representations and
warranties contained in Section 3.1 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section
5.1, and (B) no Default exists. The Borrower shall prepay any
Revolving Loans outstanding on the Revolving Credit Increase Effective Date
(and
pay any additional amounts required pursuant to Section 2.16) to the extent
necessary to keep the outstanding Revolving Loans ratable with any revised
Revolving Commitment Percentages arising from any nonratable increase in the
Revolving Commitments under this Section.
(f) Conflicting
Provisions. This Section shall supersede any provisions in
Section 2.11 or 9.1 to the contrary.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
To
induce
the Lenders to enter into this Agreement and to make the Extensions of Credit
herein provided for, the Credit Parties hereby represent and warrant to the
Administrative Agent and to each Lender that:
Section
3.1 Financial
Condition.
The
audited consolidated balance sheets and the related statements of income,
retained earnings and cash flows of the Parent and its Subsidiaries for the
fiscal year ending February 3, 2007, and the unaudited condensed consolidated
balance sheets and the related condensed statements of income and cash flows
of
the Parent and its Subsidiaries for the fiscal quarter ending November 3, 2007
are complete and correct and present fairly, in all material respects, the
financial condition of, and the results of operations for, such Persons as
of
such dates. All such financial statements have been prepared in
accordance with GAAP applied consistently throughout the periods involved
(except as disclosed therein). None of the Parent nor its
Subsidiaries have on the date hereof any material contingent liabilities,
liabilities for taxes, unusual forward or long-term commitments or unrealized
or
anticipated losses from any unfavorable commitments, except as referred to
or
reflected or provided for in the balance sheets referred to above.
Section
3.2 No
Change.
Since
February 3, 2007 (and after delivery of annual audited financial statements
in
accordance with Section 5.1(a), from the date of the most recently delivered
annual audited financial statements) there has been no development or event
which has had or could reasonably be expected to have a Material Adverse
Effect.
Section
3.3 Corporate
Existence; Compliance with Law.
Each
of
the Parent and its Subsidiaries (a) is duly organized, validly existing and
in
good standing under the laws of the jurisdiction of its organization, (b) has
the requisite power and authority and the legal right to own and operate all
its
material property, to lease the material property it operates as lessee and
to
conduct the business in which it is currently engaged, (c) is duly qualified
to
conduct business and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification except to the extent that the failure to so qualify
or be in good standing could not, in the aggregate, reasonably be expected
to
have a Material Adverse Effect and (d) is in compliance with all Requirements
of
Law except to the extent that the failure to comply therewith could not, in
the
aggregate, reasonably be expected to have a Material Adverse Effect.
Section
3.4 Corporate
Power; Authorization; Enforceable Obligations.
Each
of
the Credit Parties has full power and authority and the legal right to make,
deliver and perform the Credit Documents to which it is party and has taken
all
necessary action to authorize the execution, delivery and performance by it
of
the Credit Documents to which it is party. No consent or
authorization of, filing with, notice to or other act by or in respect of,
any
Governmental Authority or any other Person is required in connection with the
borrowings hereunder or with the execution, delivery or performance of any
Credit Document by any Credit Party (other than those which have been obtained)
or with the validity or enforceability of any Credit Document against any Credit
Party (except such filings as are necessary in connection with the perfection
of
the Liens, if any, created by such Credit Documents). Each Credit
Document to which any Credit Party is a party has been duly executed and
delivered by such Credit Party. Each Credit Document to which any
Credit Party is a party constitutes a legal, valid and binding obligation of
such Credit Party, enforceable against such Credit Party in accordance with
its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
Section
3.5 No
Legal
Bar; No Default.
The
execution, delivery and performance of the Credit Documents, the borrowings
thereunder and the use of the proceeds of the Loans will not violate any
Requirement of Law or any Contractual Obligation of the Parent or its
Subsidiaries (except those as to which waivers or consents have been obtained),
and will not result in, or require, the creation or imposition of any Lien
on
any of its or their respective properties or revenues pursuant to any
Requirement of Law or Contractual Obligation other than the Liens arising under
or contemplated in connection with the Credit Documents. Neither the
Parent nor any of its Subsidiaries is in default under or with respect to any
of
its Contractual Obligations in any respect which could reasonably be expected
to
have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
Section
3.6 No
Material Litigation.
No
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the best knowledge of the Credit
Parties, threatened by or against the Parent or any of its Subsidiaries or
against any of its or their respective properties or revenues (a) with respect
to the Credit Documents or any Loan or any of the transactions contemplated
hereby, or (b) which, if adversely determined, could reasonably be expected
to
have a Material Adverse Effect.
Section
3.7 Investment
Company Act.
Neither
the Parent nor any of its Subsidiaries is an “investment company”, or a company
“controlled” by an “investment company”, within the meaning of the Investment
Company Act of 1940, as amended.
Section
3.8 Margin
Regulations.
No
part
of the proceeds of any Loan hereunder will be used directly or indirectly for
any purpose which violates, or which would be inconsistent with, the provisions
of Regulation T, U or X of the Board of Governors of the Federal Reserve System
as now and from time to time hereafter in effect. The aggregate value
of all “margin stock” owned by the Parent and its Subsidiaries taken as a group
does not exceed 25% of the value of their assets.
Section
3.9 ERISA.
Except
as
could not reasonably be expected to have a Material Adverse Effect,
(a) neither
a
Reportable Event nor an “accumulated funding deficiency” (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code;
(b) no
termination of a Single Employer Plan has occurred resulting in any liability
that has remained underfunded, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period;
(c) the
present value of all accrued benefits under each Single Employer Plan (based
on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits; and
(d) neither
the Parent, nor any of its Subsidiaries, nor any Commonly Controlled Entity
is
currently subject to any liability for a complete or partial withdrawal from
a
Multiemployer Plan.
Section
3.10 Environmental
Matters.
Except
as
to matters which could not reasonably be expected to have a Material Adverse
Effect:
(a) the
facilities and properties owned, leased or operated by the Parent or any of
its
Subsidiaries (the “Real Properties”) do
not contain any Hazardous Materials in amounts or concentrations which (i)
constitute a violation of, or (ii) could give rise to liability under, any
Environmental Law;
(b) the
Real
Properties and all operations of the Parent and/or its Subsidiaries at the
Real
Properties are in compliance, and have in the last five years been in
compliance, in all material respects with all applicable Environmental Laws,
and
there is no contamination at, under or about the Real Properties or violation
of
any Environmental Law with respect to the Real Properties or the business
operated by the Parent or any of its Subsidiaries (the “Business”);
(c) neither
the Parent nor any of its Subsidiaries has received any written or actual notice
of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental
Laws
with regard to any of the Real Properties or the Business, nor does the Parent
or any of its Subsidiaries have knowledge or reason to believe that any such
notice will be received or is being threatened;
(d) Hazardous
Materials have not been transported or disposed of from the Real Properties
in
violation of, or in a manner or to a location which could give rise to liability
under any Environmental Law, nor have any Hazardous Materials been generated,
treated, stored or disposed of at, on or under any of the Real Properties in
violation of, or in a manner that could give rise to liability under, any
applicable Environmental Law;
(e) no
judicial proceeding or governmental or administrative action is pending or,
to
the knowledge of the Credit Parties, threatened, under any Environmental Law
to
which the Parent or any Subsidiary is or will be named as a party with respect
to the Real Properties or the Business, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental
Law
with respect to the Real Properties or the Business; and
(f) there
has
been no release or threat of release of Hazardous Materials at or from the
Real
Properties, or arising from or related to the operations of the Parent or any
Subsidiary in connection with the Real Properties or otherwise in connection
with the Business, in violation of or in amounts or in a manner that could
give
rise to liability under Environmental Laws.
Section
3.11 Purpose
of Loans.
The
proceeds of the Loans hereunder shall be used solely by the Borrower to (i)
refinance existing Indebtedness and (ii) provide for working capital and other
general corporate purposes, including Permitted Acquisitions, repurchases of
Capital Stock of the Parent, and the payment of dividends in accordance with
the
terms of this Agreement. The Letters of Credit shall be used for
general corporate purposes.
Section
3.12 Subsidiaries.
Set
forth
on Schedule
3.12 is a complete and accurate list of all Subsidiaries of the
Parent. Information on the attached Schedule includes state of
incorporation; the number of shares of each class of Capital Stock or other
equity interests outstanding; the number and percentage of outstanding shares
of
each class of stock owned by Parent or its Subsidiaries; and the number and
effect, if exercised, of all outstanding options, warrants, rights of conversion
or purchase and similar rights. The outstanding Capital Stock and
other equity interests of all such Subsidiaries is validly issued, fully paid
and non-assessable and is owned, free and clear of all Liens.
Section
3.13 Ownership.
Each
of
the Parent and its Subsidiaries (a) is the owner of, and has good and marketable
title to, all of its respective assets, except as may be permitted pursuant
to
Section 6.12 hereof, and none of such assets is subject to any Lien other than
Permitted Liens and (b) enjoys peaceful and undisturbed possession of all leased
and owned Real Properties that are necessary for the operation and conduct
of
its business.
Section
3.14 Indebtedness.
Except
as
otherwise permitted under Section 6.1, the Parent and its Subsidiaries have
no
Indebtedness.
Section
3.15 Taxes.
Each
of
the Parent and its Subsidiaries has filed, or caused to be filed, all tax
returns (federal, state, local and foreign) required to be filed and paid (a)
all amounts of taxes shown thereon to be due (including interest and penalties)
and (b) all other taxes, fees, assessments and other governmental charges
(including mortgage recording taxes, documentary stamp taxes and intangibles
taxes) owing by it, except for such taxes (i) which are not yet delinquent
or
(ii) that are being contested in good faith and by proper proceedings, and
against which adequate reserves are being maintained in accordance with GAAP
or
(iii) the failure to file and pay such taxes could not reasonably be expected
to
have a Material Adverse Effect. Neither the Parent nor any of its
Subsidiaries is aware of any proposed tax assessments against it or any of
its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect.
Section
3.16 Intellectual
Property.
Each
of
the Parent and its Subsidiaries owns, or has the legal right to use, all
trademarks, tradenames, patents, copyrights, technology, know-how and processes
(collectively, the “Intellectual
Property”) necessary for each of them to conduct its business as
currently conducted. No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property
or
the validity or effectiveness of any such Intellectual Property, nor does the
Parent or any of its Subsidiaries know of any such claim, and, to the knowledge
of the Credit Parties, the use of such Intellectual Property by the Parent
or
any of its Subsidiaries does not infringe on the rights of any Person, except
for such claims and infringements that in the aggregate, could not reasonably
be
expected to have a Material Adverse Effect.
Section
3.17 Solvency.
The
fair
saleable value of each Credit Party’s assets, measured on a going concern basis,
exceeds all probable liabilities, including those to be incurred pursuant to
this Credit Agreement. None of the Credit Parties (a) has unreasonably small
capital in relation to the business in which it is or proposes to be engaged
or
(b) has incurred, or believes that it will incur after giving effect to the
transactions contemplated by this Credit Agreement, Indebtedness beyond its
ability to pay such Indebtedness as it becomes due.
Section
3.18 Investments.
All
Investments of each of the Parent and its Subsidiaries are Permitted
Investments.
Section
3.19 No
Burdensome Restrictions.
None
of
the Parent or any of its Subsidiaries is a party to any agreement or instrument
or subject to any other obligation or any charter or corporate restriction
or
any provision of any applicable law, rule or regulation which, individually
or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
Section
3.20 Brokers’
Fees.
None
of
the Parent nor any of its Subsidiaries has any obligation to any Person in
respect of any finder’s, broker’s, investment banking or other similar fee in
connection with any of the transactions contemplated under the Credit Documents
other than the closing and other fees payable pursuant to this Credit Agreement
and the Engagement Letter.
Section
3.21 Labor
Matters.
None
of
the Parent or any of its Subsidiaries (i) has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five years
or
(ii) has knowledge of any potential or pending strike, walkout or work
stoppage.
Section
3.22 Accuracy
and Completeness of Information.
All
factual information heretofore, contemporaneously or hereafter furnished by
or
on behalf of the Parent or any of its Subsidiaries to the Administrative Agent
or any Lender for purposes of or in connection with this Agreement or any other
Credit Document, or any transaction contemplated hereby or thereby, is or will
be true and accurate in all material respects and not incomplete by omitting
to
state any material fact necessary to make such information not
misleading. There is no fact now known to the Parent or any of its
Subsidiaries which has, or could reasonably be expected to have, a Material
Adverse Effect which fact has not been set forth herein, in the financial
statements of the Parent and its Subsidiaries furnished to the Administrative
Agent and/or the Lenders, or in any certificate, opinion or other written
statement made or furnished by the Parent or any of its Subsidiaries to the
Administrative Agent and/or the Lenders.
ARTICLE
IV
CONDITIONS
PRECEDENT
Section
4.1 Conditions
to Closing Date and Initial Revolving Loans.
This
Agreement shall become effective upon, and the obligation of each Lender to
make
the initial Extensions of Credit on the Closing Date is subject to, the
satisfaction of the following conditions precedent:
(a) Execution
of
Agreement. The Administrative Agent shall have received (i)
counterparts of this Agreement, executed by a duly authorized officer of each
party hereto, (ii) for the account of each Revolving Lender that requests a
Revolving Note, a Revolving Note, (iii) for the account of each Term Loan Lender
that requests a Term Note, a Term Note, and (iv) for the account of the
Swingline Lender, the Swingline Note, in each case conforming to the
requirements of this Agreement and executed by a duly authorized officer of
the
Borrower.
(b) Authority
Documents. The Administrative Agent shall have received a
secretary’s certificate substantially in the form of Schedule 4.1(b) with
respect to the following:
(i) Charter
Documents. Copies of the articles of incorporation or other
organizational documents, as applicable, of each Credit Party and each corporate
general partner or managing member of a Credit Party certified to be true and
complete as of a recent date by the appropriate Governmental Authority of the
state of its organization.
(ii) Resolutions. Copies
of resolutions or certificate of authorization of the board of directors,
general partner or managing member of each Credit Party approving and adopting
the Credit Documents, the transactions contemplated therein and authorizing
execution and delivery thereof, certified by an officer, general partner or
managing member of such Credit Party as of the Closing Date to be true and
correct and in force and effect as of such date.
(iii) Bylaws;
Operating
Agreements; Etc.. A copy of the bylaws, operating agreement or
other governing document of each Credit Party and each corporate general partner
or managing member of a Credit Party certified by an officer of such Credit
Party or corporate general partner or managing member as of the Closing Date
to
be true and correct and in force and effect as of such date.
(iv) Good
Standing. Copies of certificates of good standing, existence
or its equivalent with respect to each Credit Party certified as of a recent
date by the appropriate Governmental Authorities of the state of incorporation
and each other state in which the failure to so qualify and be in good standing
could reasonably be expected to have a Material Adverse Effect on the business
or operations of the Parent and its Subsidiaries, taken as a whole.
(v) Incumbency. An
incumbency certificate of each Credit Party and each corporate general partner
or managing member of a Credit Party certified by a secretary or assistant
secretary to be true and correct as of the Closing Date.
(c) Legal
Opinions of
Counsel.
The Administrative Agent shall have received an opinion of legal counsel
for the
Credit Parties, dated the Closing Date and addressed to the Administrative
Agent
and the Lenders, in form and substance acceptable to the Administrative
Agent.
(d) Liability
and Casualty
Insurance. The Administrative Agent shall have received copies
of insurance policies or certificates of insurance evidencing liability and
casualty insurance meeting the requirements set forth herein.
(e) Fees
and
Expenses. The Borrower shall have paid all fees and expenses
owed by it to the Lenders and the Administrative Agent, including, without
limitation, payment to the Administrative Agent of the fees owing pursuant
to
the Engagement Letter and Section 2.4.
(f) Litigation.
There
shall not exist any pending litigation or investigation affecting or relating
to
the Parent or any of its Subsidiaries, this Agreement and the other Credit
Documents that in the reasonable judgment of the Administrative Agent could
reasonably be expected to have a Material Adverse Effect on the Parent or any
of
its Subsidiaries, this Agreement and the other Credit Documents, that has not
been settled, dismissed, vacated, discharged or terminated prior to the Closing
Date.
(g) Solvency
Evidence. The Administrative Agent shall have received an
officer’s certificate for the Credit Parties prepared by the chief financial
officer or treasurer of the Borrower as to the financial condition, solvency
and
related matters of the Credit Parties taken as a whole, after giving effect
to
the initial borrowings under the Credit Documents, in substantially the form
of
Schedule 4.1(g)
hereto.
(h) Account
Designation
Letter. The Administrative Agent shall have received the
executed Account Designation Letter in the form of Schedule 1.1(a)
hereto.
(i) Corporate
Structure. The corporate capital and ownership structure of
the Parent and its Subsidiaries shall be as described in Schedule
3.12.
(j) Consents. The
Administrative Agent shall have received evidence that all governmental,
shareholder and material third party consents and approvals necessary in
connection with the financings and other transactions contemplated hereby have
been obtained and all applicable waiting periods have expired without any action
being taken by any authority that could restrain, prevent or impose any material
adverse conditions on such transactions or that could seek or threaten any
of
the foregoing.
(k) Compliance
with
Laws. The financings and other transactions contemplated
hereby shall be in compliance with all applicable laws and regulations
(including Environmental Laws and all applicable securities and banking laws,
rules and regulations).
(l) Bankruptcy. There
shall be no bankruptcy or insolvency proceedings with respect to the Parent
or
any of its Subsidiaries.
(m) Financial
Statements. The Administrative Agent shall have received
copies of the financial statements referred to in Section 3.1
hereof.
(n) Material
Adverse
Change. Since February 3, 2007, there shall not have occurred
any change or event which could reasonably be expected to have a Material
Adverse Effect on the business, assets, liabilities (actual or contingent),
operations or condition (financial or otherwise) of the Parent and its
Subsidiaries taken as a whole, or the facts and information regarding such
entities as represented to date.
(o) Officer’s
Certificate. The Administrative Agent shall have received a
certificate executed by the chief financial officer or treasurer of the Borrower
on behalf of the Credit Parties as of the Closing Date stating that (A) the
Credit Parties and each of their Subsidiaries are in compliance with all
existing material financial obligations, (B) all governmental, shareholder
and
third party consents and approvals, if any, with respect to the Credit Documents
and the transactions contemplated thereby have been obtained, (C) no action,
suit, investigation or proceeding is pending or threatened in any court or
before any arbitrator or governmental instrumentality that purports to affect
a
Credit Party, any of the Credit Parties’ Subsidiaries or any transaction
contemplated by the Credit Documents, if such action, suit, investigation or
proceeding would have or be reasonably expected to have a Material Adverse
Effect, and (D) immediately after giving effect to this Credit Agreement, the
other Credit Documents and all the transactions contemplated therein to occur
on
such date, (1) no Default or Event of Default exists, (2) all
representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects, and (3) the Credit
Parties are in compliance with each of the financial covenants set forth in
Section 5.9.
(p) Projections. The
Administrative Agent shall have received the five year financial and operational
projections for the Parent and its Subsidiaries for the fiscal years 2008
through 2012, together with a detailed explanation of all management assumptions
contained therein, which projections shall be in form and substance satisfactory
to the Administrative Agent.
(q) Repayment
of Debt,
Etc. The Existing Borrower shall have terminated the
commitments and repaid all outstanding loans under the Existing Credit
Agreement.
(r) Sources
and Uses; Payment
Instructions. The Administrative Agent shall have received (a)
a statement of sources and uses of funds covering all payments reasonably
expected to be made by the Borrower in connection with the transactions
contemplated by the Credit Documents to be consummated on the Closing Date,
including an itemized estimate of all fees, expenses and other closing costs
and
(b) payment instructions with respect to each wire transfer to be made by the
Administrative Agent on behalf of the Lenders or the Borrower on the Closing
Date setting forth the amount of such transfer, the purpose of such transfer,
the name and number of the account to which such transfer is to be made, the
name and ABA number of the bank or other financial institution where such
account is located and the name and telephone number of an individual that
can
be contacted to confirm receipt of such transfer.
(s) Additional
Matters. All other documents and legal matters in connection
with the transactions contemplated by this Agreement shall be reasonably
satisfactory in form and substance to the Administrative Agent and its
counsel.
Section
4.2 Conditions
to All Extensions of Credit.
The
obligation of each Lender to make any Extension of Credit hereunder is subject
to the satisfaction of the following conditions precedent on the date of making
such Extension of Credit:
(a) Representations
and
Warranties. The representations and warranties made by the
Credit Parties herein or which are contained in any certificate furnished at
any
time under or in connection herewith shall be true and correct in all material
respects on and as of the date of such Extension of Credit as if made on and
as
of such date (or, if any such representation or warranty is expressly stated
to
have been made as of a specific date, as of such specific date).
(b) No
Default or Event of
Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Extension of Credit
to be made on such date unless such Default or Event of Default shall have
been
waived in accordance with this Agreement.
(c) Compliance
with
Commitments. Immediately after giving effect to the making of
any such Extension of Credit (and the application of the proceeds thereof),
(i) the sum of the aggregate principal amount of outstanding Revolving
Loans plus
outstanding Swingline Loans plus LOC Obligations
shall not exceed the Revolving Committed Amount, (ii) the LOC Obligations shall
not exceed the LOC Committed Amount and (iii) the outstanding Swingline Loans
shall not exceed the Swingline Committed Amount.
(d) Additional
Conditions to
Revolving Loans. If such Loan is a Revolving Loan made
pursuant to Section 2.1, all applicable conditions set forth in such Section
shall have been satisfied.
(e) Additional
Conditions to
Swingline Loans. If a Swingline Loan is requested, all
applicable conditions set forth in Section 2.1 shall have been
satisfied.
(f) Additional
Conditions to
Term Loan. If such Loan is a Term Loan made pursuant to
Section 2.2, all applicable conditions set forth in such Section shall have
been
satisfied.
(g) Additional
Conditions to
Letters of Credit. If such Extension of Credit is made
pursuant to Section 2.3, all conditions set forth in such Section shall have
been satisfied.
Each
request for an Extension of Credit and each acceptance by the Borrower of any
such Extension of Credit shall be deemed to constitute a representation and
warranty by the Borrower as of the date of such Extension of Credit that the
applicable conditions in paragraphs (a) through (e) of this Section have been
satisfied.
ARTICLE
V
AFFIRMATIVE
COVENANTS
The
Credit Parties hereby covenant and agree that on the Closing Date, and
thereafter for so long as this Agreement is in effect and until the Commitments
have terminated, no Note remains outstanding and unpaid and the Credit Party
Obligations, together with interest, the Facility Fee and all other amounts
owing to the Administrative Agent, any Issuing Lender or any Lender hereunder,
are paid in full, the Credit Parties shall, and shall cause each of their
respective Subsidiaries to:
Section
5.1 Financial
Statements.
Furnish
to the Administrative Agent and each of the Lenders:
(a) Annual
Financial
Statements. As soon as available and in any event within 90
days after the end of each fiscal year of the Parent (i) consolidated statements
of income, stockholders’ equity and cash flows of the Parent and its
Subsidiaries for such fiscal year and (ii) the related consolidated balance
sheet of the Parent and its Subsidiaries as at the end of such fiscal year,
setting forth in each case in comparative form the corresponding consolidated
figures for the preceding fiscal year, and accompanied by an unqualified opinion
thereon of independent certified public accountants of recognized national
standing, which opinion shall state that such consolidated financial statements
fairly present the consolidated financial condition and results of operations
of
the Parent and its Subsidiaries, as at the end of, and for, such fiscal year
in
accordance with GAAP, and a certificate of such accountants stating that, in
making the examination necessary for their opinion, they obtained no knowledge,
except as specifically stated, of any Default or Event of Default;
and
(b) Quarterly
Financial
Statements. As soon as available and in any event within 45
days after the end of each of the first three quarterly fiscal periods of each
fiscal year of the Parent, (i) consolidated statements of income and cash flows
of the Parent and its Subsidiaries and (ii) the related consolidated balance
sheet of the Parent and its Subsidiaries, in each case for such period and
for
the period from the beginning of the respective fiscal year to the end of such
period, setting forth in each case in comparative form the corresponding
consolidated figures for the corresponding periods in the preceding fiscal
year,
accompanied by a certificate of a Responsible Officer of the Parent and, if
the
Parent is no longer the Borrower, the Borrower, which certificate shall state
that such consolidated financial statements fairly present the consolidated
financial condition and results of operations of the Parent and its
Subsidiaries, in accordance with GAAP consistently applied, as at the end of,
and for, such period (subject to normal year-end audit adjustments);
and
all
such
financial statements to be accompanied by a description of, and an estimation
of
the effect on the financial statements on account of, a change, if any, in
the
application of accounting principles as provided in Section 1.3.
Section
5.2 Certificates;
Other Information.
Furnish
to the Administrative Agent and each of the Lenders:
(a) promptly
upon their becoming available, copies of all registration statements and regular
periodic reports, if any, that the Parent or any Subsidiary shall have filed
with the SEC or any national securities exchange;
(b) promptly
upon mailing thereof to the shareholders of the Parent generally, copies of
all
financial statements, reports and proxy statements so mailed;
(c) at
the
time it furnishes each set of financial statements pursuant to Sections 5.1(a)
and 5.1(b) above, a certificate of a Responsible Officer of the Parent, and,
if
the Parent is no longer the Borrower, the Borrower (i) certifying that (A)
each
of the Credit Parties during such period observed or performed in all material
respects all of its covenants and other agreements, and satisfied in all
material respects every condition contained in this Agreement to be observed,
performed or satisfied by it, and (B) no Default or Event of Default has
occurred and is continuing (or, if any Default or Event of Default has occurred
and is continuing, describing the same in reasonable detail and describing
the
action that the Parent, or, if the Parent is no longer the Borrower, the
Borrower has taken or proposes to take with respect thereto) and (ii) setting
forth in reasonable detail the computations necessary to determine whether
the
Credit Parties are in compliance with Section 5.9 hereof as of the end of the
respective quarterly fiscal period or fiscal year;
(d) from
time
to time such other information regarding the financial condition, operations,
business or prospects of the Parent or any of its Subsidiaries (including,
without limitation, any Plan or Multiemployer Plan and any reports or other
information required to be filed under ERISA) as any Lender or the
Administrative Agent may reasonably request.
Section
5.3 Payment
of Obligations.
Pay,
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, in accordance with industry practice (subject,
where applicable, to specified grace periods) all of its material obligations
of
whatever nature and any additional costs that are imposed as a result of any
failure to so pay, discharge or otherwise satisfy such obligations, except
when
the amount or validity of such obligations and costs is currently being
contested in good faith by appropriate proceedings and reserves, if applicable,
in conformity with GAAP with respect thereto have been provided on the books
of
the Parent or its Subsidiaries, as the case may be, or failure to pay could
not
reasonably be expected to have a Material Adverse Effect.
Section
5.4 Conduct
of Business and Maintenance of Existence.
(a) Preserve
and maintain its legal existence and all of its material rights, privileges,
licenses and franchises (provided that nothing
in this Section 5.4 shall prohibit any transaction expressly permitted under
Section 6.4 hereof).
(b) Pay
and
discharge all taxes, assessments and governmental charges or levies imposed
on
it or on its income or profits or on any of its assets prior to the date on
which penalties attach thereto, except for any such tax, assessment, charge
or
levy the payment of which is being contested in good faith and by proper
proceedings and against which adequate reserves are being maintained or where
failure to pay any such tax, assessment, charge or levy could not reasonably
be
expected to have a Material Adverse Effect.
Section
5.5 Maintenance
of Property; Insurance.
(a) Keep
all
material property used or useful in its business in good working order and
condition (ordinary wear and tear and obsolescence excepted).
(b) Maintain
insurance with financially sound and reputable insurance companies, and with
respect to Property and risks of a character usually maintained by corporations
engaged in the same or similar business similarly situated, against loss, damage
and liability of the kinds and in the amounts customarily maintained by such
corporations, including self-insurance.
Section
5.6 Inspection
of Property; Books and Records; Discussions.
(a) Keep
adequate records and books of account in which complete entries in accordance
with GAAP consistently applied and all Requirements of Law shall be made of
all
dealings and transactions in relation to its businesses and
activities.
(b) Upon
reasonable prior notice, permit representatives of any Lender or the
Administrative Agent, during normal business hours, to examine, copy and make
extracts from its books and records, to inspect any of its Real Properties,
and
to discuss its business and affairs with its officers, all to the extent
reasonably requested by such Lender or the Administrative Agent (as the case
may
be).
Section
5.7 Notices.
Give
prompt notice in writing to the Administrative Agent (which shall promptly
transmit such notice to each Lender) of:
(a) within
five Business Days after any Credit Party knows or has reason to know thereof,
the occurrence of any Default or Event of Default;
(b) any
default or event of default under any Contractual Obligation of the Parent
or
any of its Subsidiaries which could reasonably be expected to have a Material
Adverse Effect;
(c) any
legal
or arbitral proceedings before any Governmental Authority and any material
development in respect of such legal or other proceedings affecting the Parent
or any of its Subsidiaries, except proceedings that, if adversely determined,
would not (either individually or in the aggregate) have a Material Adverse
Effect;
(d) as
soon
as possible, and in any event within ten days after any Credit Party or any
of
its Subsidiaries knows or has reason to believe that any of the events or
conditions specified below with respect to any Plan or Multiemployer Plan has
occurred or exists, a statement signed by a Responsible Officer of the Parent
or
such Credit Party setting forth details respecting such event or condition
and
the action, if any, that the Parent, any Credit Party or any ERISA Affiliate
proposes to take with respect thereto (and a copy of any report or notice
required to be filed with or given to PBGC by the Parent, any other Credit
Party
or any ERISA Affiliate with respect to such event or condition):
(i) any
Reportable Event with respect to a Plan, as to which PBGC has not by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified within
30
days of the occurrence of such event (provided that a
failure to meet the minimum funding standard of Section 412 of the Code or
Section 302 of ERISA, including, without limitation, the failure to make on
or
before its due date a required installment under Section 412(m) of the Code
or Section 302(e) of ERISA, shall be a reportable event regardless of the
issuance of any waivers in accordance with Section 412(d) of the Code) and
any
request for a waiver under Section 412(d) of the Code for any Plan;
(ii) the
distribution under Section 4041 of ERISA of a notice of intent to terminate
any
Plan or any action taken by any Credit Party or any of its Subsidiaries or
any
ERISA Affiliate to terminate any Plan;
(iii) the
institution by PBGC of proceedings under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or
the
receipt by any Credit Party or any of its Subsidiaries or any ERISA Affiliate
of
a notice from a Multiemployer Plan that such action has been taken by PBGC
with
respect to such Multiemployer Plan;
(iv) the
complete or partial withdrawal from a Multiemployer Plan by any Credit Party
or
any of its Subsidiaries or any ERISA Affiliate that results in liability under
Section 4201 or 4204 of ERISA (including the obligation to satisfy secondary
liability as a result of a purchaser default) or the receipt by any Credit
Party
or any of its Subsidiaries or any ERISA Affiliate of notice from a Multiemployer
Plan that it is in reorganization or insolvency pursuant to Section 4241 or
4245 of ERISA or that it intends to terminate or has terminated under
Section 4041A of ERISA;
(v) the
institution of a proceeding by a fiduciary of any Multiemployer Plan against
any
Credit Party or any of its Subsidiaries or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 30 days;
and
(vi) the
adoption of an amendment to any Plan that, pursuant to Section 401(a)(29)
of the Code or Section 307 of ERISA, would result in the loss of tax-exempt
status of the trust of which such Plan is a part if any Credit Party or any
of
its Subsidiaries or any ERISA Affiliate fails to timely provide security to
the
Plan in accordance with the provisions of said Sections;
(e) any
assertion of any Environmental Claim by any Person against, or with respect
to
the activities of, the Parent or any of its Subsidiaries and notice of any
alleged violation of or non-compliance with any Environmental Laws or any
permits, licenses or authorizations, other than any Environmental Claim or
alleged violation that, if adversely determined, would not (either individually
or in the aggregate) have a Material Adverse Effect; and
(f) any
other
development or event which could reasonably be expected to have a Material
Adverse Effect.
Each
notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Parent, or, if the Parent is no longer the Borrower,
the Borrower proposes to take with respect thereto. In the case of
any notice of a Default or Event of Default, the Parent or the Borrower, as
applicable, shall specify that such notice is a Default or Event of Default
notice on the face thereof.
Section
5.8 Environmental
Laws.
Without
limiting the general terms set forth in Section 5.11:
(a) Comply
in
all material respects with, and ensure compliance in all material respects
by
all tenants and subtenants, if any, with, all applicable Environmental Laws
and
obtain and comply in all material respects with and maintain, and ensure that
all tenants and subtenants obtain and comply in all material respects with
and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect;
(b) Conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and
promptly comply in all material respects with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws except to the
extent that the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings could not reasonably be
expected to have a Material Adverse Effect; and
(c) Defend,
indemnify and hold harmless the Administrative Agent and the Lenders, and their
respective employees, agents, officers and directors, from and against any
and
all claims, demands, penalties, fines, liabilities, settlements, damages, costs
and expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to
the
operations of the Parent or any of its Subsidiaries or the Real Properties,
or
any orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, reasonable attorney’s and consultant’s fees,
investigation and laboratory fees, response costs, court costs and litigation
expenses, except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification
therefor. The agreements in this paragraph shall survive repayment of
the Notes and all other amounts payable hereunder.
Section
5.9 Financial
Covenants.
Commencing
on the day immediately following the Closing Date, the Parent shall, and shall
cause each of its Subsidiaries to, comply with the following financial
covenants:
(a) Adjusted
Leverage
Ratio. The Adjusted Leverage Ratio, as of the last day of each
fiscal quarter of the Parent and its Subsidiaries, shall be less than or equal
to 3.50 to 1.0.
(b) Fixed
Charge Coverage
Ratio. The Fixed Charge Coverage Ratio, as of the last day of
each fiscal quarter of the Parent and its Subsidiaries, shall be greater than
or
equal to 2.00 to 1.0.
Section
5.10 Obligations
Regarding Subsidiaries; Additional Subsidiary Guarantors.
(a) Except
as
permitted by Section 6.4, the Parent will, and will cause each of its
Subsidiaries to take such action from time to time as shall be necessary to
ensure that each of its Subsidiaries remains a Subsidiary at all
times.
(b) The
Credit Parties will cause each of their Domestic Subsidiaries, whether newly
formed, after acquired or otherwise existing, to promptly become a Guarantor
hereunder by way of execution of a Joinder Agreement and take such other action
as may be required pursuant to the terms of Section 5.12.
Section
5.11 Compliance
with Law.
Each
Credit Party will, and will cause each of its Subsidiaries to, comply with
all
laws, rules, regulations and orders, and all applicable restrictions imposed
by
all Governmental Authorities, applicable to it and its assets if noncompliance
with any such law, rule, regulation, order or restriction could reasonably
be
expected to have a Material Adverse Effect.
Section
5.12 Additional
Credit Parties.
As
soon
as practicable and in any event within 30 days after any Person (whether newly
formed, acquired or otherwise) becomes a Subsidiary of any Credit Party, the
Borrower shall provide the Administrative Agent with written notice thereof
and
shall (a) if such Person is a Domestic Subsidiary of a Credit Party, cause
such
Person to execute a Joinder Agreement in substantially the same form as Schedule 5.12,
and (b) deliver
such other documentation as the Administrative Agent may reasonably request
in
connection with the foregoing, including, without limitation, certified
resolutions and other organizational and authorizing documents of such Person
and favorable opinions of counsel to such Person (which shall cover, among
other
things, the legality, validity, binding effect and enforceability of the
documentation referred to above).
Section
5.13 Addition
of Realty Trust as a Credit Party.
In
the
event that the Corporate Reorganization does not occur on or before May 31,
2008, DTSD Realty Trust 1999-1 shall become a party to this Agreement pursuant
to the terms of Section 5.12 hereto; provided, however,
that for so
long as the aggregate market value of all assets held by DTSD Realty Trust
1999-1 shall be less than $100,000, DTSD Realty Trust 1999-1 shall
not be required to become a party to this Agreement.
ARTICLE
VI
NEGATIVE
COVENANTS
The
Credit Parties hereby covenant and agree that on the Closing Date, and
thereafter for so long as this Agreement is in effect and until the Commitments
have terminated, no Note remains outstanding and unpaid and the Credit Party
Obligations, together with interest, the Facility Fee and all other amounts
owing to the Administrative Agent or any Lender hereunder, are paid in full,
the
Credit Parties shall, and shall cause each of their respective Subsidiaries,
to
act in accordance with the following:
Section
6.1 Indebtedness.
The
Parent will not, nor will it permit any Subsidiary to, contract, create, incur,
assume or permit to exist any Indebtedness, except:
(a) Indebtedness
arising or existing under this Agreement and the other Credit
Documents;
(b) Indebtedness
of the Parent and its Subsidiaries existing as of the Closing Date as referenced
in the financial statements referenced in Section 3.1 (and set out more
specifically in Schedule 6.1(b))
hereto and renewals, refinancings or extensions thereof in a principal amount
not in excess of that outstanding as of the date of such renewal, refinancing
or
extension;
(c) Indebtedness
(including Capital Lease Obligations) incurred to finance the purchase of
equipment, and other Capital Lease Obligations, not to exceed, when added to
Indebtedness outstanding pursuant to Section 6.1(e) hereof, 20% of Consolidated
Net Worth in the aggregate outstanding at any time; provided that (i) such
Indebtedness when incurred shall not exceed the purchase price or cost of
construction of such asset and (ii) no such Indebtedness shall be refinanced
for
a principal amount in excess of the principal balance outstanding thereon at
the
time of such refinancing;
(d) intercompany
Indebtedness of one Credit Party to another Credit Party;
(e) additional
Indebtedness of the Credit Parties up to but not exceeding, when added to
Indebtedness outstanding pursuant to Section 6.1(c) hereof, 20% of Consolidated
Net Worth in the aggregate outstanding at any time; and
(f) Indebtedness
in respect of Hedging Agreements to the extent permitted hereunder.
Section
6.2 Liens.
The
Parent will not, nor will it permit any Subsidiary to, contract, create, incur,
assume or permit to exist any Lien with respect to any of its assets (other
than
“margin stock” within the meaning of Regulation U), whether now owned or
hereafter acquired, except for Permitted Liens.
Section
6.3 Nature
of
Business.
Neither
the Parent nor any of its Subsidiaries will engage in any line or lines of
business activity other than those conducted as of the Closing Date, except
for
lines of business which generate less than 5% of the gross revenues of the
Parent and its Subsidiaries on a consolidated basis.
Section
6.4 Consolidation,
Merger, Sale or Purchase of Assets, etc.
The
Parent will not, nor will it permit any Subsidiary to,
(a) except
as
provided in Section
6.4(d) below, enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution);
(b) acquire
any business or assets from, or Capital Stock of, or be a party to any
acquisition of, any Person except:
(i) for
purchases of inventory and other assets to be sold or used in the ordinary
course of business; and
(ii) Investments
permitted under Section 6.5 hereof;
(c) convey,
sell, lease, transfer or otherwise dispose of, in one transaction or a series
of
transactions, any part of its business or assets, whether now owned or hereafter
acquired (including, without limitation, receivables and leasehold interests),
but excluding:
(i) any
Excluded Disposition;
(ii) obsolete
or worn-out Property, tools or equipment no longer used or useful in its
business (other than any Excluded Disposition) or real Property no longer used
or useful in its business;
(iii) any
sale,
lease or transfer of assets from a Credit Party to another Credit Party;
and
(iv) other
assets provided
that the aggregate current market value of all assets so sold or transferred
(in
each case determined at the time of such sale or transfer) shall not at any
time
exceed, when added to the assets sold or transferred pursuant to Section 6.12
hereof, 10% of the current market value of the total assets of the Parent and
its Subsidiaries and immediately after giving effect to such transaction, the
Parent and its Subsidiaries shall be in compliance with the financial covenants
set forth in Section 5.9 hereof on a Pro Forma Basis and both before and after
giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing;
provided,
that in
each case with respect to subsection (iv) above at least 85% of the
consideration received therefor by the Parent or any such Subsidiary is in
the
form of cash or Cash Equivalents; and
(d) Notwithstanding
the foregoing provisions of this Section 6.4, so long as no Default or Event
of
Default shall have occurred and be continuing, and after giving effect to any
of
the succeeding transactions, no Default or Event of Default would exist
hereunder:
(i) (A)
any
Credit Party may be merged or consolidated with or into another Credit Party;
provided, that, subject to clause (D) immediately below, if one of the parties
to such merger or consolidation is the Borrower, the Borrower shall be the
continuing or surviving corporation, (B) any Subsidiary may be merged or
consolidated with or into another Credit Party so long as the surviving party
is
either (x) a Credit Party or (y) an Additional Credit Party; provided, that,
subject to clause (D) immediately below, if one of the parties to such merger
or
consolidation is the Borrower, the Borrower shall be the continuing or surviving
corporation, (C) any of the Parent or any Subsidiary may merge or consolidate
with or into any Person that is not a Credit Party, provided that the
applicable conditions set forth in Section 6.4(b) regarding
acquisitions are complied with in connection with any such acquisition by
merger, the Parent or any such Subsidiary shall be the continuing or surviving
corporation and immediately after giving effect to such transaction, the Parent
and its Subsidiaries shall be in compliance with the financial covenants set
forth in Section 5.9 hereof on a Pro Forma Basis and (D) the Borrower may merge
or consolidate with or into any Credit Party or with any Person wholly-owned
and
controlled by a Credit Party, provided that if
the
Borrower is not the continuing or surviving entity, the surviving entity shall
have assumed all obligations of the Borrower under the Credit Documents and
immediately after giving effect to such transaction, the Parent and its
Subsidiaries shall be in compliance with the financial covenants set forth
in
Section 5.9 hereof on a Pro Forma Basis and the ownership of the properties
and
assets of the Credit Parties as a whole shall remain unchanged; and
(ii) any
Subsidiary of the Parent (other than, if the Parent is no longer the Borrower,
the Borrower) may sell, lease, transfer or otherwise dispose of any or all
of
its assets (upon voluntary liquidation or otherwise) to any Credit
Party.
The
Borrower shall provide the Administrative Agent with prior written notice of
any
transaction described in this Section 6.4(d) and take such other action as
may
be required pursuant to the terms of Section 5.12.
Section
6.5 Advances,
Investments and Loans.
The
Parent will not, nor will it permit
any Subsidiary to, lend money or extend credit or make advances to any Person
(other than extensions of credit to vendors and suppliers in the form of
indemnification obligations owed by such Persons to the Parent or any of its
Subsidiaries under vendor/supply contracts entered into in the ordinary course
of business), or purchase or acquire any stock, obligations or securities of,
or
any other interest in, or make any capital contribution to, any Person except
for Permitted Investments.
Section
6.6 Transactions
with Affiliates.
Except
as
expressly permitted by this Agreement, the Parent will not, nor will it permit
any of its Subsidiaries to, directly or indirectly: (a) make any investment
in
an Affiliate other than Permitted Investments; (b) transfer, sell, lease, assign
or otherwise dispose of any assets to an Affiliate; (c) merge into or
consolidate with or purchase or acquire assets from an Affiliate other than
Permitted Acquisitions; or (d) enter into any other transaction directly or
indirectly with or for the benefit of an Affiliate (including, without
limitation, guarantees and assumptions of obligations of an Affiliate); provided that (i)
any
Affiliate who is an individual may serve as a director, officer or employee
of
the Parent or any of its Subsidiaries and receive reasonable compensation for
his or her services in such capacity and (ii) the Parent and its Subsidiaries
may enter into transactions (other than extensions of credit by the Parent
or
any of its Subsidiaries to an Affiliate) if the monetary or business
consideration arising therefrom would be substantially as advantageous to the
Parent and its Subsidiaries as the monetary or business consideration that
would
be obtained in a comparable transaction with a Person not an Affiliate.
Section
6.7 Ownership
of Subsidiaries; Restrictions.
The
Parent will not, nor will it permit any Subsidiary to, create, form or acquire
any Subsidiaries, except for (a) wholly-owned Domestic Subsidiaries which are
joined as Additional Credit Parties in accordance with the terms hereof and
(b)
wholly-owned (or, if not wholly owned, owned to the maximum extent permitted
under applicable law) Foreign Subsidiaries approved in writing by the Agent,
which approval shall not be unreasonably withheld. The Parent will
not, nor will it permit its Subsidiaries to, sell, transfer, pledge or otherwise
dispose of any Capital Stock or other equity interests in any of its
Subsidiaries, nor will it permit any of its Subsidiaries to issue, sell,
transfer, pledge or otherwise dispose of any of its Capital Stock or other
equity interests, except in a transaction permitted by Section 6.4.
Section
6.8 Fiscal
Year; Organizational Documents; Material Contracts.
The
Parent will not, nor will it permit any of its Subsidiaries to, change its
fiscal year, except to adopt a retail fiscal year end which is no more than
65
days from December 31. The Borrower will promptly notify the Agent of
such change in fiscal year. The Parent will not, nor will it permit
any Subsidiary to, amend, modify or change its articles of incorporation (or
corporate charter or other similar organizational document) or bylaws (or other
similar document) in any manner that could adversely affect the rights of the
Lenders hereunder. The Parent will not, nor will it permit any of its
Subsidiaries to, without the prior written consent of the Administrative Agent,
amend, modify, cancel or terminate or fail to renew or extend or permit the
amendment, modification, cancellation or termination of any of the Material
Contracts, except in the event that such amendments, modifications,
cancellations or terminations could not reasonably be expected to have a
Material Adverse Effect.
Section
6.9 Limitation
on Actions.
(a) The
Parent will not, nor will it permit any Subsidiary to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any such Person to (a) pay dividends or make
any other distributions to any Credit Party on its Capital Stock or with respect
to any other interest or participation in, or measured by, its profits, (b)
pay
any Indebtedness or other obligation owed to any Credit Party, (c) make loans
or
advances to any Credit Party, (d) sell, lease or transfer any of its properties
or assets to any Credit Party, or (e) act as a Guarantor pursuant to the Credit
Documents or any renewals, refinancings, exchanges, refundings or extension
thereof, except (in respect of any of the matters referred to in clauses (a)-(d)
above) for such encumbrances or restrictions existing under or by reason of
(i)
this Agreement and the other Credit Documents, (ii) applicable law, (iii)
any document or instrument governing Indebtedness incurred pursuant to Section
6.1(c), provided that any
such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, or (iv) any Permitted Lien
or
any document or instrument governing any Permitted Lien, provided that any
such restriction contained therein relates only to the asset or assets subject
to such Permitted Lien.
(b) The
Parent will not, nor will it permit any Subsidiary to, enter into, assume or
become subject to any agreement prohibiting or otherwise restricting the
creation or assumption of any Lien upon its properties or assets, whether now
owned or hereafter acquired, or requiring the grant of any security for such
obligation if security is given for some other obligation except (i) pursuant
to
this Agreement and the other Credit Documents, (ii) pursuant to applicable
law,
(iii) pursuant to any document or instrument governing Indebtedness incurred
pursuant to Section 6.1(c), provided that in
the
case of Section 6.1(c) any such restriction contained therein relates only
to the asset or assets constructed or acquired in connection therewith, (iv) customary
restrictions and conditions contained in agreements relating to the sale of
a
Subsidiary or assets pending such sale, provided such restrictions and
conditions apply only to the Subsidiary or assets that are to be sold and such
sale is permitted hereunder, (v) restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the assets securing such Indebtedness,
(vi) customary provisions in leases and other contracts restricting the
assignment thereof, (vii) restrictions in any document or instrument governing
any Permitted Lien, provided that any
such restriction contained therein relates only to the asset or assets subject
to such Permitted Lien and (viii) any indenture agreement, instrument or other
arrangement relating to the assets or business of any Subsidiary and existing
prior to the consummation of the Permitted Acquisition in which such Subsidiary
was acquired.
Section
6.10 Restricted
Payments.
The
Parent will not, nor will it permit any Subsidiary to, directly or indirectly,
declare, order, make or set apart any sum for or pay any Restricted Payment,
except (a) to make dividends payable solely in the same class of Capital Stock
of such Person, (b) to make dividends or other distributions payable to any
Credit Party (directly or indirectly through Subsidiaries), (c) as permitted
by
Section 6.11, (d) to make dividends to or repurchases from the Parent or the
parent of such Subsidiary (provided that such parent company is a Credit Party)
the proceeds of which shall be used to pay taxes that are then due and payable,
and (e) the Parent may pay dividends or repurchase shares of its Capital Stock
so long as no Default or Event of Default shall have occurred and be continuing
or be directly or indirectly caused as a result thereof and after giving effect
to such payments or repurchases, the Parent and its Subsidiaries shall be in
compliance with the financial covenants set forth in Section 5.9 hereof on
a Pro
Forma Basis, determined at the time of any such payment or repurchase.
Section
6.11 Prepayments
of Indebtedness, etc.
(a) The
Parent will not, nor will it permit any of its Subsidiaries to, amend or modify
(or permit the amendment or modification of) any of the terms of the documents
evidencing its or their Indebtedness if such amendment or modification would
add
or change any terms in a manner adverse to the issuer of such Indebtedness,
or
shorten the final maturity or average life to maturity or require any payment
to
be made sooner than originally scheduled or increase the interest rate
applicable thereto or change any subordination provision thereof.
(b) The
Borrower will furnish to the Administrative Agent a copy of each modification,
supplement or waiver of any provisions of any agreement, instrument or other
document evidencing or relating to the charter or bylaws of the Parent or any
of
its Subsidiaries promptly upon the effectiveness thereof (and the Administrative
Agent will promptly furnish a copy thereof to each Lender).
Section
6.12 Sale
Leasebacks.
The
Parent will not, nor will it permit any Subsidiary to, directly or indirectly,
enter into any arrangement, directly or indirectly, whereby the Parent or any
Subsidiary shall sell or transfer any property owned by it to a Person (other
than the Parent or any Subsidiary) in order then or thereafter to lease such
property or lease other property which the Parent or any Subsidiary intends
to
use for substantially the same purpose as the property being sold or
transferred. Notwithstanding the foregoing provisions of this Section
6.12, the Parent or any Subsidiary may sell or transfer any property owned
by it
as described in the preceding sentence provided that the
aggregate current market value of all assets so sold or transferred (in each
case determined at the time of such sale or transfer) shall not at any time
exceed, when added to the assets sold or transferred pursuant to Section
6.4(c)(iv) hereof, 10% of the current market value of the total assets of the
Parent and its Subsidiaries and immediately after giving effect to such
transaction, the Parent and its Subsidiaries shall be in compliance with the
financial covenants set forth in Section 5.9 hereof on a Pro Forma Basis.
Section
6.13 Use
of
Proceeds.
The
Borrower will not use the proceeds of the Loans and Letters of Credit in a
manner inconsistent with the uses permitted under Section 3.11 hereof.
ARTICLE
VII
EVENTS
OF DEFAULT
Section
7.1 Events
of
Default.
An
Event
of Default shall exist upon the occurrence of any of the following specified
events (each an “Event
of Default”):
(a) (i)
The
Borrower shall fail to pay any principal on any Note when due in accordance
with
the terms thereof or hereof; or (ii) the Borrower shall fail to reimburse the
applicable Issuing Lender for any LOC Obligations when due in accordance with
the terms hereof; or (iii) the Borrower shall fail to pay any interest on any
Note or any fee or other amount payable hereunder when due in accordance with
the terms thereof or hereof and any such failure shall continue unremedied
for
three (3) Business Days; or (iv) any Guarantor
shall fail to pay on the Guaranty in respect of any of the foregoing or in
respect of any other Guaranty Obligations thereunder; or
(b) Any
representation or warranty made or deemed made herein or in any of the other
Credit Documents or which is contained in any certificate, document or financial
or other statement furnished at any time under or in connection with this
Agreement shall prove to have been incorrect, false or misleading in any
material respect on or as of the date made or deemed made; or
(c) (i)
Any
Credit Party shall fail to perform, comply with or observe any term, covenant
or
agreement applicable to it contained in Sections 5.4(a), 5.6(b), 5.7(a) or
5.9
or Article VI hereof; or (ii) any Credit Party shall fail to comply with any
other covenant, contained in this Credit Agreement or the other Credit Documents
or any other agreement, document or instrument among any Credit Party, the
Administrative Agent and the Lenders or executed by any Credit Party in favor
of
the Administrative Agent or the Lenders (other than as described in Sections
7.1(a) or 7.1(c)(i) above), and in the event any such breach or failure to
comply is capable of cure, is not cured within thirty (30) days of its
occurrence; or
(d) The
Parent or any of its Subsidiaries shall (i) default in any payment of principal
of or interest on any Indebtedness (other than the Notes) in a principal amount
outstanding of at least $5,000,000 in the aggregate for the Parent and any
of
its Subsidiaries beyond the period of grace (not to exceed 30 days), if any,
provided in the instrument or agreement under which such Indebtedness was
created; or (ii) default in the observance or performance of any other agreement
or condition relating to any Indebtedness in a principal amount outstanding
of
at least $5,000,000 in the aggregate for the Parent and its Subsidiaries or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such Indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity; or
(e) (i)
The
Parent or any of its Subsidiaries shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or
other relief with respect to it or its debts, or (B) seeking appointment of
a
receiver, trustee, custodian, conservator or other similar official for it
or
for all or any substantial part of its assets, or the Parent or any Subsidiary
shall make a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against the Parent or any Subsidiary any case, proceeding
or
other action of a nature referred to in clause (i) above which (A) results
in
the entry of an order for relief or any such adjudication or appointment or
(B)
remains undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Parent or any Subsidiary any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part
of
its assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) the Parent or any Subsidiary
shall take any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) the Parent or any Subsidiary shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(f) One
or
more judgments or decrees shall be entered against the Parent or any of its
Subsidiaries involving in the aggregate a liability (to the extent not paid
when
due or covered by insurance) of $5,000,000 or more and all such judgments or
decrees shall not have been paid and satisfied, vacated, discharged, stayed
or
bonded pending appeal within 30 days from the entry thereof; or
(g) (i)
Any
Person shall engage in any “prohibited transaction” (as defined in Section 406
of ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated
funding deficiency” (as defined in Section 302 of ERISA), whether or not waived,
shall exist with respect to any Plan or any Lien in favor of the PBGC or a
Plan
(other than a Permitted Lien) shall arise on the assets of the Parent, any
of
its Subsidiaries or any Commonly Controlled Entity, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any
Single Employer Plan, which Reportable Event or commencement of proceedings
or
appointment of a Trustee is, in the reasonable opinion of the Required Lenders,
likely to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title
IV of
ERISA, (v) the Parent, any of its Subsidiaries or any Commonly Controlled Entity
shall, or in the reasonable opinion of the Required Lenders is likely to, incur
any liability in connection with a withdrawal from, or the Insolvency or ERISA
Reorganization of, any Multiemployer Plan or (vi) any other similar event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all
other
such events or conditions, if any, could have a Material Adverse Effect;
or
(h) A
reasonable basis shall exist for the assertion against the Parent or any of
its
Subsidiaries, or any predecessor in interest of the Parent or any of its
Subsidiaries, of (or there shall have been asserted against the Parent or any
of
its Subsidiaries) an Environmental Claim that, in the judgment of the Required
Lenders, is reasonably likely to be determined adversely to the Parent or any
of
its Subsidiaries, and the amount thereof (either individually or in the
aggregate) is reasonably likely to have a Material Adverse Effect (insofar
as
such amount is payable by the Parent or any of its Subsidiaries but after
deducting any portion thereof that is reasonably expected to be paid by other
creditworthy Persons jointly and severally liable therefor); or
(i) A
Change
of Control shall occur; or
(j) The
Guaranty or any provision thereof shall cease to be in full force and effect
or
any Guarantor or any Person acting by or on behalf of any Guarantor shall deny
or disaffirm any Guarantor’s obligations under the Guaranty; or
(k) Any
other
Credit Document shall fail to be in full force and effect or to give the
Administrative Agent and/or the Lenders the security interests, liens, rights,
powers and privileges purported to be created thereby (except as such documents
may be terminated or no longer in force and effect in accordance with the terms
thereof, other than those indemnities and provisions which by their terms shall
survive).
Section
7.2 Acceleration;
Remedies.
Upon
the
occurrence of an Event of Default, then, and in any such event, (a) if such
event is an Event of Default specified in Section 7.1(e) above, automatically
the Commitments shall immediately terminate and the Loans (with accrued interest
thereon), and all other amounts under the Credit Documents (including without
limitation the maximum amount of all contingent liabilities under Letters of
Credit) shall immediately become due and payable, the Administrative Agent
shall
have the right to enforce any and all other rights and interests created and
existing under the Credit Documents, including, without limitation, all rights
and remedies against a Guarantor and all rights of set-off, and the
Administrative Agent shall have the right to enforce any and all other rights
and remedies of a creditor under applicable law, and (b) if such event is any
other Event of Default, with the written consent of the Required Lenders, the
Administrative Agent may, or upon the written request of the Required Lenders,
the Administrative Agent shall, by notice to the Borrower, take any or all
of
the following actions: (i) declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; (ii) declare the Loans
(with accrued interest thereon) and all other amounts owing under this Agreement
and the Notes to be due and payable forthwith and direct the Borrower to pay
to
the Administrative Agent cash collateral as security for the LOC Obligations
for
subsequent drawings under then outstanding Letters of Credit in an amount equal
to the maximum amount of which may be drawn under Letters of Credit then
outstanding, whereupon the same shall immediately become due and payable; (iii)
enforce any and all other rights and interests created and existing under the
Credit Documents, including, without limitation, all rights and remedies against
a Guarantor and all rights of set-off; and (iv) enforce any and all other rights
and remedies of a creditor under applicable law. Except as expressly
provided above in this Section 7.2, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.
ARTICLE
VIII
THE
AGENT
Section
8.1 Appointment
and Authority. Each of the Lenders and the Issuing Lender
hereby irrevocably appoints Wachovia to act on its behalf as the Administrative
Agent hereunder and under the other Credit Documents and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of
the Administrative Agent, the Lenders and the Issuing Lender, and neither the
Borrower nor any other Credit Party shall have rights as a third party
beneficiary of any of such provisions.
Section
8.2 Rights
as
a Lender. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender
as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders”
shall,
unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the
Borrower or any Subsidiary or other Affiliate thereof as if such Person were
not
the Administrative Agent hereunder and without any duty to account therefor
to
the Lenders.
Section
8.3 Exculpatory
Provisions. The Administrative Agent shall not have any duties
or obligations except those expressly set forth herein and in the other Credit
Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall
not
be subject to any fiduciary or other implied duties, regardless of whether
a
Default has occurred and is continuing;
(b) shall
not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby
or
by the other Credit Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such other number
or
percentage of the Lenders as shall be expressly provided for herein or in the
other Credit Documents); provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent
to
liability or that is contrary to any Credit Document or applicable law;
and
(c) shall
not, except as expressly set forth herein and in the other Credit Documents,
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or
any of its Affiliates in any capacity.
The
Administrative Agent shall not be liable for any action taken or not taken
by it
(i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under
the
circumstances as provided in Sections 9.1 and
7.2)
or
(ii) in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the Issuing
Lender.
The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Credit Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions
set
forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Credit Document or any other agreement, instrument or document or
(v) the satisfaction of any condition set forth in Article IV or
elsewhere herein, other than to confirm receipt of items expressly required
to
be delivered to the Administrative Agent.
Section
8.4 Reliance
by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon,
any
notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed,
sent or otherwise authenticated by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or
by
telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or the Issuing Lender, the Administrative Agent may presume that
such condition is satisfactory to such Lender or the Issuing Lender unless
the
Administrative Agent shall have received notice to the contrary from such Lender
or the Issuing Lender prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and
other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants
or
experts.
Section
8.5 Delegation
of Duties. The Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other
Credit Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers by
or
through their respective Related Parties. The exculpatory provisions
of this Article shall apply to any such sub-agent and to the Related Parties
of
the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative
Agent.
Section
8.6 Resignation
of Administrative Agent. The Administrative Agent may at any
time give notice of its resignation to the Lenders, the Issuing Lender and
the
Borrower. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right, in consultation with the Borrower (so
long as no Default), to appoint a successor, which shall be a bank or an
Affiliate of any such bank. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the Lenders
and the Issuing Lender, appoint a successor Administrative Agent meeting the
qualifications set forth above provided that if
the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Credit Documents and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender
and
the Issuing Lender directly, until such time as the Required Lenders appoint
a
successor Administrative Agent as provided for above in this
paragraph. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
(or
retired) Administrative Agent, and the retiring Administrative Agent shall
be
discharged from all of its duties and obligations hereunder or under the other
Credit Documents (if not already discharged therefrom as provided above in
this
paragraph). The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such
successor. After the retiring Administrative Agent’s resignation
hereunder and under the other Credit Documents, the provisions of this Article
and Section 9.5
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.
Section
8.7 Non-Reliance
on Administrative Agent and Other Lenders. Each Lender and the
Issuing Lender acknowledges that it has, independently and without reliance
upon
the Administrative Agent or any other Lender or any of their Related Parties
and
based on such documents and information as it has deemed appropriate, made
its
own credit analysis and decision to enter into this Agreement. Each
Lender and the Issuing Lender also acknowledges that it will, independently
and
without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in taking
or not taking action under or based upon this Agreement, any other Credit
Document or any related agreement or any document furnished hereunder or
thereunder.
Section
8.8 No
Other
Duties, etc. Anything herein to the contrary notwithstanding,
none of the Bookrunners, Agents (other than the Administrative Agent) or
Arrangers, as applicable, listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Credit
Documents, except in its capacity, as applicable, as the Administrative Agent,
a
Lender or the Issuing Lender hereunder.
ARTICLE
IX
MISCELLANEOUS
Section
9.1 Amendments,
Etc.; Non-Consenting Lenders.
Neither
this Credit Agreement, nor any of the Notes, nor any of the other Credit
Documents, nor any terms hereof or thereof may be amended, supplemented, waived
or modified except in accordance with the provisions of this Section nor may
the
Borrower or any Guarantor be released except in accordance with the provisions
of this Section 9.1. The Required Lenders may, or, with the written
consent of the Required Lenders, the Administrative Agent may, from time to
time, (a) enter into with the Borrower or any other Credit Party written
amendments, supplements or modifications hereto and to the other Credit
Documents for the purpose of adding any provisions to this Credit Agreement
or
the other Credit Documents or changing in any manner the rights of the Lenders
or of the Borrower or any other Credit Party hereunder or thereunder or (b)
waive, on such terms and conditions as the Required Lenders may specify in
such
instrument, any of the requirements of this Credit Agreement or the other Credit
Documents or any Default or Event of Default and its consequences; provided, however,
that no such
waiver and no such amendment, waiver, supplement, modification or release
shall:
(i) reduce
the amount or extend the scheduled date of maturity of any Loan or Note or
any
installment thereon, or reduce the stated rate of any interest or fee payable
hereunder (except in connection with a waiver of interest at the increased
post-default rate set forth in Section 2.8(b) which shall be determined by
a
vote of the Required Lenders) or extend the scheduled date of any payment
thereof or forgive any principal, interest or fee payable hereunder, or extend
the expiration date of any Lender’s Commitment, in each case without the written
consent of each Lender directly affected thereby; or
(ii) increase
the amount of any Lender’s Commitment without the written consent of such
Lender; or
(iii) amend,
modify or waive any provision of this Section 9.1 or reduce the percentage
specified in the definition of Required Lenders, without the written consent
of
all Lenders; or
(iv) amend,
modify or waive any provision of Article VIII without the written consent of
the
Administrative Agent; or
(v) release
the Borrower or a substantial portion of the Guarantors from their obligations
hereunder or under the Guaranty, without the written consent of all Lenders;
or
(vi) permit
the Borrower to assign or transfer any of its rights or obligations under this
Credit Agreement or other Credit Documents without the written consent of all
Lenders; or
(vii) amend,
modify or waive any provision of the Credit Documents requiring consent,
approval or request of the Required Lenders or all Lenders without the written
consent of all of the Required Lenders or Lenders as appropriate;
or
(viii) amend,
modify or waive the order in which Credit Party Obligations are paid in
Section 2.11(b) without the written consent of all Lenders; or
(ix) amend
or
modify the definition of Credit Party Obligations to delete or exclude any
obligation or liability described therein without the written consent of each
Lender directly affected thereby;
provided,
further,
that no
amendment, waiver or consent affecting the rights or duties of the
Administrative Agent, the Issuing Lender or the Swingline Lender under any
Credit Document shall in any event be effective, unless in writing and signed
by
the Administrative Agent, the Issuing Lender and/or the Swingline Lender, as
applicable, in addition to the Lenders required hereinabove to take such
action.
In
the
event that any Lender (a “Non-Consenting
Lender”) fails to consent to any proposed amendment, modification,
termination, waiver or consent with respect to any provision hereof or of any
other Credit Document that requires the unanimous approval of all of the Lenders
or the approval of all of the Lenders directly affected thereby, in each case
in
accordance with the terms of this Section 9.1, the Borrower shall be permitted
to replace such Non-Consenting Lender with a replacement financial institution
satisfactory to the Administrative Agent, so long as the consent of the Required
Lenders shall have been obtained with respect to such amendment, modification,
termination, waiver or consent; provided that
(i) such replacement does not conflict with any applicable law, treaty,
rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, (ii) the replacement financial institution shall
purchase, at par, all Loans and other amounts owing to the Non-Consenting Lender
pursuant to the Credit Documents on or prior to the date of replacement,
(iii) the replacement financial institution shall approve the proposed
amendment, modification, termination, waiver or consent, (iv) the Borrower
shall
be liable to the Non-Consenting Lender under Section 2.16 if any LIBOR Rate
Loan
owing to the Non-Consenting Lender shall be purchased other than on the last
day
of the Interest Period relating thereto, (v) the Non-Consenting Lender shall
be
obligated to make such replacement in accordance with the provisions of Section
9.6(c) (provided that the
Borrower shall be obligated to pay the registration and processing fee referred
to therein), (vi) until such time as such replacement shall be consummated,
the
Borrower shall pay to the Non-Consenting Lender all additional amounts (if
any)
required pursuant to Section 2.14, 2.15, 2.16 or 2.17, as the case may be,
(vii)
the Borrower provides at least three (3) Business Days’ prior notice to the
Non-Consenting Lender, and (viii) any such replacement shall not be deemed
to be a waiver of any rights that the Borrower, the Administrative Agent or
any
other Lender shall have against the Non-Consenting Lender. In the
event any Non-Consenting Lender fails to execute the agreements required under
Section 9.6 in connection with an assignment pursuant to this Section 9.1,
the
Borrower may, upon two (2) Business Days’ prior notice to the Non-Consenting
Lender, execute such agreements on behalf of the Non-Consenting Lender.
Any
such
waiver, any such amendment, supplement or modification and any such release
shall apply equally to each of the Lenders and shall be binding upon the
Borrower, the other Credit Parties, the Lenders, the Administrative Agent and
all future holders of the Notes. In the case of any waiver, the
Borrower, the other Credit Parties, the Lenders and the Administrative Agent
shall be restored to their former position and rights hereunder and under the
outstanding Loans and Notes and other Credit Documents, and any Default or
Event
of Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default,
or
impair any right consequent thereon.
Notwithstanding
any of the foregoing to the contrary, the consent of the Credit Parties shall
not be required for any amendment, modification or waiver of the provisions
of
Article VIII (other than the provisions of Section 8.6); provided, however,
that the
Administrative Agent will provide written notice to the Borrower of any such
amendment, modification or waiver. In addition, the Borrower and the
Lenders hereby authorize the Administrative Agent to modify this Credit
Agreement by unilaterally amending or supplementing Schedule 2.1(a) from time
to
time in the manner requested by the Borrower, the Administrative Agent or any
Lender in order to reflect any assignments or transfers of the Loans as provided
for hereunder; provided that the
Administrative Agent shall promptly deliver a copy of any such modification
to
the Borrower and each Lender.
Notwithstanding
the fact that the consent of all the Lenders is required in certain
circumstances as set forth above, (x) each Lender is entitled to vote as such
Lender sees fit on any bankruptcy reorganization plan that affects the Loans,
and each Lender acknowledges that the provisions of Section 1126(c) of the
Bankruptcy Code supersede the unanimous consent provisions set forth herein
and
(y) the Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding.
Section
9.2 Notices.
Except
as
otherwise provided in Article II, all notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including
by
telecopy), and, unless otherwise expressly provided herein, shall be deemed
to
have been duly given or made (a) when delivered by hand, (b) when transmitted
via telecopy (or other facsimile device) to the number set out herein, (c)
the
day following the day on which the same has been delivered prepaid or pursuant
to an invoice arrangement to a reputable national overnight air courier service,
or (d) the fifth Business Day following the day on which the same is sent by
certified or registered mail, postage prepaid, in each case, addressed as
follows in the case of the Borrower, the other Credit Parties and the
Administrative Agent, and as set forth on Schedule 9.2 in the
case of the Lenders, or to such other address as may be hereafter notified
by
the respective parties hereto and any future holders of the Notes:
|
The
Borrower and the
other
Credit Parties:
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Dollar
Tree Stores, Inc.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate
Secretary
Telecopier: (▇▇▇)
▇▇▇-▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
With
a copy to:
Attention: Corporate
Treasurer
Telecopier: (▇▇▇)
▇▇▇-▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
The
Administrative
Agent:
|
Wachovia
Bank, National Association, as Administrative Agent
Charlotte
Plaza
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▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication
Agency Services
Telecopier: (▇▇▇)
▇▇▇-▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
with
a copy to:
Wachovia
Bank, National Association
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇)
▇▇▇-▇▇▇▇
Telephone: (▇▇▇)
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Section
9.3 No
Waiver; Cumulative Remedies.
No
failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or
privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
Section
9.4 Survival
of Representations and Warranties.
All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Notes and the making of
the
Loans, provided
that all such representations and warranties shall terminate on the date upon
which the Commitments have been terminated and all amounts owing hereunder
and
under any Notes have been paid in full.
Section
9.5 Payment
of Expenses and Taxes.
The
Credit Parties agree (a) to pay or reimburse the Administrative Agent for all
its reasonable out-of-pocket costs and expenses incurred in connection with
the
development, preparation, negotiation, printing and execution of, and any
amendment, supplement or modification to, this Agreement and the other Credit
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, together with the reasonable fees and disbursements of counsel
to
the Administrative Agent, (b) to pay or reimburse each Lender and the
Administrative Agent for all its costs and expenses incurred in connection
with
the enforcement or preservation of any rights under this Agreement, the Notes
and any such other documents, including, without limitation, the reasonable
fees
and disbursements of counsel to the Administrative Agent and to the Lenders
(including reasonable allocated costs of in-house legal counsel), (c) on demand,
to pay, indemnify, and hold each Lender and the Administrative Agent harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Credit
Documents and any such other documents, and (d) to pay, indemnify, and hold
each
Lender and the Administrative Agent and their Affiliates harmless from and
against, any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of the Credit Documents and any such other
documents and the use, or proposed use, of proceeds of the Loans and whether
or
not the Administrative Agent, the relevant Lenders and their Affiliates are
parties to the claim, demand, action, cause of action or proceeding from which
any of the aforementioned arises (all of the foregoing, collectively, the “indemnified
liabilities”); provided,
however,
that the
Borrower shall not have any obligation hereunder to the Administrative Agent
or
any Lender with respect to indemnified liabilities arising from the gross
negligence or willful misconduct of the Administrative Agent or any such Lender,
as determined by a court of competent jurisdiction. The agreements in
this Section 9.5 shall survive repayment or assignment of the Loans, Notes
and
all other amounts payable hereunder.
Section
9.6 Successors
and Assigns.
(a) Successors
and Assigns
Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that neither the Borrower nor
any other Credit Party may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative
Agent and each Lender, and no Lender may assign or otherwise transfer any of
its
rights or obligations hereunder except (i) to an assignee in accordance with
the
provisions of paragraph (b) of this Section, (ii) by way of participation in
accordance with the provisions of paragraph (d) of this Section or (iii) by
way
of pledge or assignment of a security interest subject to the restrictions
of
paragraph (f) of this Section (and any other attempted assignment or transfer
by
any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in paragraph (d) of this Section and, to
the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy
or
claim under or by reason of this Agreement.
(b) Assignments
by
Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing
to
it); provided
that any
such assignment shall be subject to the following
conditions:
(i) Minimum
Amounts.
(A)
in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum
amount need be assigned; and
(B)
in any case not described in paragraph (b)(i)(A) of this Section, the aggregate
amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject
to
each such assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or,
if
“Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date) shall not
be
less than $5,000,000, in the case of any assignment in respect of a Revolving
Commitment, or $5,000,000, in the case of any assignment in respect of the
Term
Loan, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each
such consent not to be unreasonably withheld or delayed); provided that, in
connection with simultaneous assignments to two or more related Approved Funds,
such Approved Funds shall be treated as one assignee for purposes of determining
compliance with the minimum assignment amount[s] referred to above.
(ii) Proportionate
Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans or the Commitments
assigned.
(iii) Required
Consents. No consent shall be required for any assignment
except to the extent required by paragraph (b)(i)(B) of this Section and, in
addition:
(A)
the consent of the Borrower (such consent not to be unreasonably withheld or
delayed) shall be required unless (x) an Event of Default has occurred and
is
continuing at the time of such assignment or (y) such assignment is to a Lender,
an Affiliate of a Lender or an Approved Fund;
(B)
the consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for assignments in respect of (i)
Revolving Commitments if such assignment is to a Person that is not a Lender
with a Commitment in respect of such facility, an Affiliate of such Lender
or an
Approved Fund with respect to such Lender or (ii) the Term Loan to a Person
who
is not a Lender, an Affiliate of a Lender or an Approved Fund;
(C)
the consent of the Issuing Lender (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation
of the assignee to participate in exposure under one or more Letters of Credit
(whether or not then outstanding); and
(D)
the consent of the Swingline Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment in respect of the
Revolving Commitments.
(iv) Assignment
and
Assumption. The parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together
with
a processing and recordation fee of $3,500; provided that in
the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved
Fund,
no such fee shall be required, and the assignee,
if it is
not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
(v) No
Assignment to
Borrower. No such assignment shall be made to the Borrower or
any of the Borrower’s Affiliates or Subsidiaries.
(vi) No
Assignment to Natural
Persons. No such assignment shall be made to a natural
person.
Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (c) of this Section, from and after the effective date specified
in
each Assignment and Assumption, the assignee thereunder shall be a party to
this
Agreement and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled
to
the benefits of Sections 2.16 and 9.5 with respect to facts
and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (d)
of
this Section.
(c) Register. The
Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at its address referred to in Section 9.2 a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments
of,
and principal amounts of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for
all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the
Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Participations. Any
Lender may at any time, without the consent of, or notice to, the Borrower
or
the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all
or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the Lenders, the Issuing Lender and the Swingline
Lender shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under this Agreement.
Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in clauses (iv), (vi), (viii), (ix), (x) (in connection with the
written consent of all Lenders only) and (xiii) that affects such
Participant. Subject to paragraph (e) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections
2.16 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of
Section 9.7 as though it were
a
Lender, provided such Participant agrees to be subject to Section 9.7 as though it were
a
Lender.
(e) Limitations
upon Participant
Rights. A Participant shall not be entitled to receive any
greater payment under Sections 2.15 and 2.17 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent. A
Participant that is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) shall not be entitled to the benefits of
Section 2.17 unless the Borrower
is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.17(a) as though it were
a
Lender.
(f) Certain
Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such
pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto. Each Credit Party (and each Lender and the Issuing Lender,
and each Related Party of any of the foregoing Persons) agrees to cooperate
with
the Administrative Agent and the Lenders in connection with any pledge or
assignment or any Participation and/or securities created pursuant to this
Section, including delivery of any documentation reasonably requested by the
Administrative Agent or a Lender in connection therewith.
Section
9.7 Adjustments;
Set-off.
(a) Each
Lender agrees that if any Lender (a “benefited Lender”)
shall at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily
or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 7.1(e), or otherwise) in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender’s Loans, or interest thereon, such benefited Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender’s Loans, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall
be
necessary to cause such benefited Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders; provided, however,
that if all
or any portion of such excess payment or benefits is thereafter recovered from
such benefited Lender, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but without
interest. The Borrower agrees that each Lender so purchasing a
portion of another Lender’s Loans may exercise all rights of payment (including,
without limitation, rights of set-off) with respect to such portion as fully
as
if such Lender were the direct holder of such portion.
(b) In
addition to any rights and remedies of the Lenders provided by law (including,
without limitation, other rights of set-off), each Lender shall have the right,
without prior notice to the Borrower, any such notice being expressly waived
by
the Borrower to the extent permitted by applicable law, upon the occurrence
of
any Event of Default, to setoff and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final), in any currency,
and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower, or any part thereof in such amounts
as
such Lender may elect, against and on account of the obligations and liabilities
of the Borrower to such Lender hereunder and claims of every nature and
description of such Lender against the Borrower, in any currency, whether
arising hereunder, under the Notes or under any documents contemplated by or
referred to herein or therein, as such Lender may elect, whether or not such
Lender has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The aforesaid
right of set-off may be exercised by such Lender against the Borrower or against
any trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver or execution, judgment or attachment creditor of the
Borrower, or against anyone else claiming through or against the Borrower or
any
such trustee in bankruptcy, debtor in possession, assignee for the benefit
of
creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the occurrence of any Event of
Default. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender;
provided, however,
that the
failure to give such notice shall not affect the validity of such set-off and
application.
Section
9.8 Table
of
Contents and Section Headings.
The
table
of contents and the Section and subsection headings herein are intended for
convenience only and shall be ignored in construing this Agreement.
Section
9.9 Counterparts.
This
Agreement may be executed by one or more of the parties to this Agreement on
any
number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. A set of
the copies of this Agreement signed by all the parties shall be lodged with
the
Borrower and the Administrative Agent.
Section
9.10 Effectiveness.
This
Credit Agreement shall become effective on the date on which all of the parties
have signed a copy hereof (whether the same or different copies) and shall
have
delivered the same to the Administrative Agent pursuant to Section 9.2 or, in
the case of the Lenders, shall have given to the Administrative Agent written,
telecopied or telex notice (actually received) at such office that the same
has
been signed and mailed to it.
Section
9.11 Severability.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
Section
9.12 Integration.
This
Agreement, the Notes and the other Credit Documents represent the agreement
of
the Borrower, the Guarantors, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent, the Borrower, the
Guarantors or any Lender relative to the subject matter hereof not expressly
set
forth or referred to herein or in the Notes.
Section
9.13 Governing
Law.
This
Agreement and the Notes and the rights and obligations of the parties under
this
Agreement and the Notes shall be governed by, and construed and interpreted
in
accordance with, the law of the State of North Carolina.
Section
9.14 Consent
to Jurisdiction and Service of Process.
All
judicial proceedings brought against the Borrower and/or any other Credit Party
with respect to this Agreement, any Note or any of the other Credit Documents
may be brought in any state or federal court of competent jurisdiction in the
State of North Carolina, and, by execution and delivery of this Agreement,
the
Borrower and the other Credit Parties accepts, for itself and in connection
with
its properties, generally and unconditionally, the non-exclusive jurisdiction
of
the aforesaid courts and irrevocably agrees to be bound by any final judgment
rendered thereby in connection with this Agreement from which no appeal has
been
taken or is available. The Borrower and the other Credit Parties
irrevocably agrees that all service of process in any such proceedings in any
such court may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to it at
its
address set forth in Section 9.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto, such service
being hereby acknowledged by the Borrower and the other Credit Parties to be
effective and binding service in every respect. The Borrower, the
other Credit Parties, the Administrative Agent and the Lenders each irrevocably
waives any objection, including, without limitation, any objection to the laying
of venue or based on the grounds of forum non conveniens which it may now or
hereafter have to the bringing of any such action or proceeding in any such
jurisdiction. Nothing herein shall affect the right to serve process
in any other manner permitted by law or shall limit the right of any Lender
to
bring proceedings against the Borrower or the other Credit Parties in the court
of any other jurisdiction.
Section
9.15 Arbitration.
(a) Notwithstanding
the provisions of Section 9.14 to the contrary, upon demand of any
party
hereto, whether made before or within three (3) months after institution of
any
judicial proceeding, any dispute, claim or controversy arising out of, connected
with or relating to this Agreement and other Credit Documents (“Disputes”) between
or
among parties to this Agreement shall be resolved by binding arbitration as
provided herein. Institution of a judicial proceeding by a party does
not waive the right of that party to demand arbitration
hereunder. Disputes may include, without limitation, tort claims,
counterclaims, disputes as to whether a matter is subject to arbitration, claims
brought as class actions, claims arising from Credit Documents executed in
the
future, or claims arising out of or connected with the transaction reflected
by
this Agreement.
Arbitration
shall be conducted under and governed by the Commercial Arbitration Rules (the
“Arbitration
Rules”) of the American Arbitration Association (the “AAA”)
and Title 9 of
the U.S. Code. All arbitration hearings shall be conducted in
Charlotte, North Carolina. A hearing shall begin within 90 days of
demand for arbitration and all hearings shall be concluded within 120 days
of
demand for arbitration. These time limitations may not be extended
unless a party shows cause for extension and then no more than a total extension
of 60 days. The expedited procedures set forth in Rule 51 etseq.
of the
Arbitration Rules shall be applicable to claims of less than
$1,000,000. All applicable statutes of limitation shall apply to any
Dispute. A judgment upon the award may be entered in any court having
jurisdiction. Arbitrators shall be licensed attorneys selected from
the Commercial Financial Dispute Arbitration Panel of the AAA. The
parties hereto do not waive applicable Federal or state substantive law except
as provided herein. Notwithstanding the foregoing, this arbitration
provision does not apply to disputes under or related to Hedging
Agreements.
(b) Notwithstanding
the preceding binding arbitration provisions, the Administrative Agent, the
Lenders, the Borrower and the other Credit Parties agree to preserve, without
diminution, certain remedies that the Administrative Agent on behalf of the
Lenders may employ or exercise freely, independently or in connection with
an
arbitration proceeding or after an arbitration action is brought. The
Administrative Agent on behalf of the Lenders shall have the right to proceed
in
any court of proper jurisdiction or by self-help to exercise or prosecute the
following remedies, as applicable (i) all rights to foreclose against any real
or personal property or other security by exercising a power of sale granted
under Credit Documents or under applicable law or by judicial foreclosure and
sale, including a proceeding to confirm the sale; (ii) all rights of self-help
including peaceful occupation of real property and collection of rents, set-off,
and peaceful possession of personal property; and (iii) obtaining provisional
or
ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and filing an involuntary bankruptcy
proceeding. Preservation of these remedies does not limit the power
of an arbitrator to grant similar remedies that may be requested by a party
in a
Dispute.
(c) The
parties hereto agree that they shall not have a remedy of punitive or exemplary
damages against the other in any Dispute and hereby waive any right or claim
to
punitive or exemplary damages they have now or which may arise in the future
in
connection with any Dispute whether the Dispute is resolved by arbitration
or
judicially.
(d) By
execution and delivery of this Agreement, each of the parties hereto accepts,
for itself and in connection with its properties, generally and unconditionally,
the non-exclusive jurisdiction relating to any arbitration proceedings conducted
under the Arbitration Rules in Charlotte, North Carolina and irrevocably agrees
to be bound by any final judgment rendered thereby in connection with this
Agreement from which no appeal has been taken or is available.
Section
9.16 Confidentiality.
Each
of
the Administrative Agent, the Lenders and the Issuing Lender agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents,
advisors and other representatives (it being understood that the Persons to
whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential); (b) to
the extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners); (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process;
(d) to any other party hereto, (e) in connection with the exercise of
any remedies hereunder, under any other Credit Document or Hedging Agreement
or
any action or proceeding relating to this Agreement, any other Credit Document
or Hedging Agreement or the enforcement of rights hereunder or thereunder;
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, or (ii) any actual or prospective counterparty (or
its advisors) to any swap or derivative transaction relating to the Borrower
and
its obligations; (g) subject
to each such Person being informed of the confidential nature
of the
Information and to their agreement to keep such Information confidential on
substantially the same terms as required by this Section, to (i) an investor or prospective
investor in securities issued by an Approved Fund that also agrees that
Information shall be used solely for the purpose of evaluating an investment
in
such securities issued by the Approved Fund, (ii) a trustee, collateral
manager, servicer, backup servicer, noteholder or secured party in securities
issued by an Approved Fund in connection with the administration, servicing
and
reporting on the assets serving as collateral for securities issued by an
Approved Fund, or (iii) a nationally recognized rating agency that requires
access to information regarding the Credit Parties, the Loans and Credit
Documents in connection with ratings issued in respect of securities issued
by
an Approved Fund; (h) with
the consent of the Borrower; or (i) to the extent such Information
(x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Administrative Agent, any Lender,
the Issuing Lender or any of their respective Affiliates on a nonconfidential
basis from a source other than the Borrower.
For
purposes of this Section, “Information” shall
mean all information received in writing from the Borrower or any of its
Subsidiaries relating to the Borrower or any of its Subsidiaries or any of
their
respective businesses, other than any such information that is available to
the
Administrative Agent, any Lender or the Issuing Lender on a nonconfidential
basis prior to disclosure by the Borrower or any of its
Subsidiaries. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
Section
9.17 Acknowledgments.
The
Borrower and the other Credit Parties each hereby acknowledge that:
(a) it
has
been advised by counsel in the negotiation, execution and delivery of each
Credit Document;
(b) neither
the Administrative Agent nor any Lender has any fiduciary relationship with
or
duty to the Borrower or any other Credit Party arising out of or in connection
with this Agreement and the relationship between Administrative Agent and
Lenders, on one hand, and the Borrower and the other Credit Parties, on the
other hand, in connection herewith is solely that of debtor and creditor;
and
(c) no
joint
venture exists among the Lenders or among the Borrower or the other Credit
Parties and the Lenders.
Section
9.18 Waivers
of Jury Trial.
THE
BORROWER, THE OTHER CREDIT PARTIES, THE ADMINISTRATIVE AGENT AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO
THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
ARTICLE
X
GUARANTY
Section
10.1 The
Guaranty.
In
order
to induce the Lenders to enter into this Agreement and to extend credit
hereunder and in recognition of the direct benefits to be received by the
Guarantors from the Extensions of Credit hereunder, each of the Guarantors
hereby agrees with the Administrative Agent and the Lenders as
follows: each Guarantor hereby unconditionally and irrevocably
jointly and severally guarantees as primary obligor and not merely as surety
the
full and prompt payment when due, whether upon maturity, by acceleration or
otherwise, of any and all indebtedness of the Borrower to the Administrative
Agent and the Lenders. If any or all of the indebtedness of the
Borrower to the Administrative Agent and the Lenders becomes due and payable
hereunder, each Guarantor unconditionally promises to pay such indebtedness
to
the Administrative Agent and the Lenders, on order, on demand, together with
any
and all reasonable expenses which may be incurred by the Administrative Agent
or
the Lenders in collecting any of the indebtedness. The word
“indebtedness” is used in this Article X in its most comprehensive sense and
includes any and all advances, debts, obligations and liabilities of the
Borrower arising in connection with this Agreement, in each case, heretofore,
now, or hereafter made, incurred or created, whether voluntarily or
involuntarily, absolute or contingent, liquidated or unliquidated, determined
or
undetermined, whether or not such indebtedness is from time to time reduced,
or
extinguished and thereafter increased or incurred, whether the Borrower may
be
liable individually or jointly with others, whether or not recovery upon such
indebtedness may be or hereafter become barred by any statute of limitations,
and whether or not such indebtedness may be or hereafter become otherwise
unenforceable.
Notwithstanding
any provision to the contrary contained herein or in any other of the Credit
Documents, to the extent the obligations of a Guarantor shall be adjudicated
to
be invalid or unenforceable for any reason (including, without limitation,
because of any applicable state or federal law relating to fraudulent
conveyances or transfers) then the obligations of each such Guarantor hereunder
shall be limited to the maximum amount that is permissible under applicable
law
(whether federal or state and including, without limitation, the Bankruptcy
Code).
Section
10.2 Bankruptcy.
Additionally,
each of the Guarantors unconditionally and irrevocably guarantees jointly and
severally the payment of any and all indebtedness of the Borrower to the Lenders
whether or not due or payable by the Borrower upon the occurrence of any of
the
events specified in Section 7.1(e), and unconditionally promises to pay
such indebtedness to the Administrative Agent for the account of the Lenders,
or
order, on demand, in lawful money of the United States. Each of the
Guarantors further agrees that to the extent that the Borrower or a Guarantor
shall make a payment or a transfer of an interest in any property to the
Administrative Agent or any Lender, which payment or transfer or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
or otherwise is avoided, and/or required to be repaid to the Borrower or a
Guarantor, the estate of the Borrower or a Guarantor, a trustee, receiver or
any
other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such avoidance or repayment, the
obligation or part thereof intended to be satisfied shall be revived and
continued in full force and effect as if said payment had not been made.
Section
10.3 Nature
of
Liability.
The
liability of each Guarantor hereunder is exclusive and independent of any
security for or other guaranty of the indebtedness of the Borrower whether
executed by any such Guarantor, any other guarantor or by any other party,
and
no Guarantor’s liability hereunder shall be affected or impaired by (a) any
direction as to application of payment by the Borrower or by any other party,
or
(b) any other continuing or other guaranty, undertaking or maximum liability
of
a guarantor or of any other party as to the indebtedness of the Borrower, or
(c)
any payment on or in reduction of any such other guaranty or undertaking, or
(d)
any dissolution, termination or increase, decrease or change in personnel by
the
Borrower, or (e) any payment made to the Administrative Agent or the Lenders
on
the indebtedness which the Administrative Agent or such Lenders repay the
Borrower pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each of the Guarantors waives
any right to the deferral or modification of its obligations hereunder by reason
of any such proceeding. The obligations of the Guarantors hereunder
are absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or any
other agreement or instrument referred to therein, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense
of a
surety or a guarantor.
Section
10.4 Independent
Obligation.
The
obligations of each Guarantor hereunder are independent of the obligations
of
any other Guarantor or the Borrower, and a separate action or actions may be
brought and prosecuted against each Guarantor whether or not action is brought
against any other Guarantor or the Borrower and whether or not any other
Guarantor or the Borrower is joined in any such action or actions.
Section
10.5 Authorization.
Each
of
the Guarantors authorizes the Administrative Agent and each Lender without
notice or demand (except as shall be required by applicable statute and cannot
be waived), and without affecting or impairing its liability hereunder, from
time to time to (a) renew, compromise, extend, increase, accelerate or otherwise
change the time for payment of, or otherwise change the terms of the
indebtedness or any part thereof in accordance with this Agreement, including
any increase or decrease of the rate of interest thereon, (b) take and hold
security from any Guarantor or any other party for the payment of this Guaranty
or the indebtedness and exchange, enforce, waive and release any such security,
(c) apply such security and direct the order or manner of sale thereof as the
Administrative Agent and the Lenders in their discretion may determine and
(d)
release or substitute any one or more endorsers, guarantors, the Borrower or
other obligors.
Section
10.6 Reliance.
It
is not
necessary for the Administrative Agent or the Lenders to inquire into the
capacity or powers of the Borrower or the officers, directors, partners or
agents acting or purporting to act on their behalf, and any indebtedness made
or
created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
Section
10.7 Waiver.
(a) Each
of
the Guarantors waives any right (except as shall be required by applicable
statute and cannot be waived) to require the Administrative Agent or any Lender
to (i) proceed against the Borrower, any other guarantor or any other party,
(ii) proceed against or exhaust any security held from the Borrower, any other
guarantor or any other party, or (iii) pursue any other remedy in the
Administrative Agent’s or any Lender’s power whatsoever. Each of the
Guarantors waives any defense based on or arising out of any defense of the
Borrower, any other Guarantor or any other party other than payment in full
of
the indebtedness, including without limitation any defense based on or arising
out of the disability of the Borrower, any other guarantor or any other party,
or the unenforceability of the indebtedness or any part thereof from any cause,
or the cessation from any cause of the liability of the Borrower other than
payment in full of the indebtedness. Without limiting the generality
of the provisions of this Article X, each of the Guarantors hereby specifically
waives the benefits of N.C. Gen. Stat. § 26-7 through 26-9,
inclusive. The Administrative Agent or any of the Lenders may, at
their election, foreclose on any security held by the Administrative Agent
or a
Lender by one or more judicial or nonjudicial sales, whether or not every aspect
of any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the
Administrative Agent and any Lender may have against the Borrower or any other
party, or any security, without affecting or impairing in any way the liability
of any Guarantor hereunder except to the extent the indebtedness has been
paid. Each of the Guarantors waives any defense arising out of any
such election by the Administrative Agent and each of the Lenders, even though
such election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of the Guarantors against the Borrower
or
any other party or any security.
(b) Each
of
the Guarantors waives all presentments, demands for performance, protests and
notices of nonperformance, notices of amendments or modifications to this
Agreement or any of the other Credit Documents, notice of protest, notices
of
dishonor, notices of acceptance of this Guaranty, and notices of the existence,
creation or incurring of new or additional indebtedness. Each
Guarantor assumes all responsibility for being and keeping itself informed
of
the Borrower’s financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the indebtedness and the nature, scope
and extent of the risks which such Guarantor assumes and incurs hereunder,
and
agrees that neither the Administrative Agent nor any Lender shall have any
duty
to advise such Guarantor of information known to it regarding such circumstances
or risks.
(c) Each
of
the Guarantors hereby agrees it will not exercise any rights of subrogation
which it may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the U.S. Bankruptcy Code, or otherwise) to
the
claims of the Lenders against the Borrower or any other guarantor of the
indebtedness of the Borrower owing to the Lenders (collectively, the “Other Parties”) and
all contractual, statutory or common law rights of reimbursement, contribution
or indemnity from any Other Party which it may at any time otherwise have as
a
result of this Guaranty until such time as the Loans hereunder shall have been
paid and the Commitments have been terminated. Each of the Guarantors
hereby further agrees not to exercise any right to enforce any other remedy
which the Administrative Agent and the Lenders now have or may hereafter have
against any Other Party, any endorser or any other guarantor of all or any
part
of the indebtedness of the Borrower and any benefit of, and any right to
participate in, any security or collateral given to or for the benefit of the
Lenders to secure payment of the indebtedness of the Borrower until such time
as
the Loans hereunder shall have been paid and the Commitments have been
terminated.
Section
10.8 Limitation
on Enforcement.
The
Lenders agree that this Guaranty may be enforced only by the action of the
Administrative Agent acting upon the instructions of the Required Lenders and
that no Lender shall have any right individually to seek to enforce or to
enforce this Guaranty, it being understood and agreed that such rights and
remedies may be exercised by the Administrative Agent for the benefit of the
Lenders upon the terms of this Agreement. The Lenders further agree
that this Guaranty may not be enforced against any director, officer, employee
or stockholder of the Guarantors.
Section
10.9 Confirmation
of Payment.
The
Administrative Agent and the Lenders will, upon request after payment of the
indebtedness and obligations which are the subject of this Guaranty and
termination of the commitments relating thereto, confirm to the Borrower, the
Guarantors or any other Person that such indebtedness and obligations have
been
paid and the commitments relating thereto terminated, subject to the provisions
of Section 10.2.
40115983.6
05151564
IN
WITNESS WHEREOF, each of the parties hereto have caused this Agreement to be
duly executed and delivered by its proper and duly authorized officers as of
the
day and year first above written.
|
BORROWER:
|
DOLLAR
TREE STORES, INC.
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By:
/s/ ▇▇▇▇▇
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Name:
▇▇▇▇▇
▇▇▇▇
Title:
Vice
President –
Treasurer
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GUARANTORS:
|
DOLLAR
TREE MANAGEMENT, INC.
|
By:
/s/ ▇▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇
Title:
Vice
President –
Treasurer
DOLLAR
TREE DISTRIBUTION, INC.
By:
/s/ ▇▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇
Title:
Vice
President –
Treasurer
GREENBRIER
INTERNATIONAL, INC.
By:
/s/ ▇▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇
Title:
Vice
President –
Treasurer
DOLLAR
TREE AIR, INC.
By:
/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇
▇▇▇▇▇
Title:
Vice President – Assistant
Secretary
40115983.6
05151564 Credit
Agreement
DOLLAR
TREE OLLIE’S, LLC
By:
/s/ ▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇
▇▇▇▇▇▇
Title:
Manager
DT
KEYSTONE MANAGEMENT INC.
DT
KEYSTONE
DISTRIBUTION, INC.
DOLLAR
TREE
PROPERTIES, INC.
DTD
TENNESSEE,
INC.
By:
/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇
▇▇▇▇▇
Title:
Vice President – Assistant
Secretary
of
each of the
foregoing corporations
DT
KEYSTONE DISTRIBUTION, LLC
By: DT
Keystone Distribution, Inc., its sole member
By:
/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇
▇▇▇▇▇
Title:
Vice President – Assistant
Secretary
DT
KEYSTONE DISTRIBUTION, R.L.L.L.P.
By: DT
Keystone Management, Inc.,
its
general
partner
By:
/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇
▇▇▇▇▇
Title:
Vice President – Assistant
Secretary
40115983.6
05151564 Credit
Agreement
AGENT
AND LENDERS: WACHOVIA BANK,
NATIONAL ASSOCIATION,
as
Administrative
Agent and a Lender
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Title:
Director
40115983.6
05151564 Credit
Agreement
Bank
of America, N.A.,
as
a Lender
By:
/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title:
Managing
Director
40115983.6
05151564 Credit
Agreement
National
City Bank,
as
a Lender
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title:
Senior Vice
President
40115983.6
05151564 Credit
Agreement
US
BANK, NATIONAL ASSOCIATION,
as
a Lender
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Title:
Vice
President
40115983.6
05151564 Credit
Agreement
SunTrust
Bank,
as
a Lender
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇.
▇▇▇▇
Title:
Vice
President
40115983.6
05151564 Credit
Agreement
▇▇▇▇▇
Fargo Bank, National
Association,
as
a Lender
By:
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇▇▇▇▇▇
Title:
Vice
President
40115983.6
05151564 Credit
Agreement
Branch
Banking and Trust
Company,
as
a Lender
By:
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇
Name:
▇▇▇▇▇ ▇.
▇▇▇▇▇
Title:
Senior Vice
President
40115983.6
05151564 Credit
Agreement
REGIONS
BANK,
as
a Lender
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Title:
Vice
President
40115983.6
05151564 Credit
Agreement
Citizens
Bank of Pennsylvania,
as
a Lender
By:
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title:
Senior Vice
President
40115983.6
05151564 Credit
Agreement
RBC
Centura Bank,
as
a Lender
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇
Name:
▇▇▇▇▇▇ ▇.
▇▇▇▇
Title:
Richmond Market
Executive
40115983.6
05151564 Credit
Agreement
Fifth
Third Bank,
as
a Lender
By:
/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Title:
Vice
President